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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


'/  l^ 


^ 


3 


THE 


PRINCIPLES  OF  EQUITY: 


TREATISE 


ON   THE 


SYSTEM  OF  JUSTICE  ADMINISTERED 


IN 


COURTS  OF  CHANCERY. 


BY 
GEO.  TUCKER  BISPHAM, 

LATE    PKOFESSOR  OF    KQUITY  JURISPRUDENCE    IN   THE    UNIVER.SITV   OF   PENKSYLVANl A, 

WITH    EXPANDED    AND   ADDED   NOTES    AND    REFERENCES 

TO    RECENT   AUTHORITIES. 

BY 
SHAR8VV00D  BRINTON, 

OF   THE    PHILADELPHIA    BAR. 


EIGHTH    EDITION. 


THE  BANKS  LAW  PUBLISHING  CO. 

NEW  YORK 

1910 


Entered  arconlinp  to  tlic  Act  of  Coujjress,  in  the  year  1874,  by 

(3E().  TUCKER  BISPHAM, 

in  tlie  Office  of  the   Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1878,  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1882,  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1887,  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1893,  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1899,  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  190'),  by 

GEO.  TUCKER  BISPHAM, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1909,  by 

NANCY   BRINLI;;V  I^iSPHAM, 

in  the  Office  of  tlic  Librarian  of  Congress,  at  Washington. 


1 


p 


k^ 


PREFACE  TO  THE  EIGHTH  EDITION. 


The  present  is  the  eighth  edition  of  this  masterly  work  and 
the  first  since  the  death  of  the  author.  Its  preparation  was  un- 
dertal<;en  by  the  editor  with  grave  doubts  as  to  his  quahfications 
for  such  a  task,  but  with  the  conviction  that  there  was  an  em- 
inent fitness  that  that  duty  should  be  performed  by  one  who, 
for  many  years,  had  enjoyed  the  personal  confidence  and  pro- 
fessional example  of  the  author.  In  a  very  full  sense  the  labors 
of  the  editor,  in  his  present  undertaking,  have  been  inspired  by 
a  grateful  appreciation  of  the  value  to  him  of  those  associations. 

The  death  of  the  author  is  so  recent  that  it  has  been  thought 
wiser  not  to  disturb  the  text  as  he  left  it,  except  only  to  correct 
certain  obvious  errors,  chiefly  of  a  clerical  nature,  whioh  had 
inadvertently  crept  into  the  work.  The  notes,  however,  have 
been  freely  expanded,  many  new  ones  have  been  added  (partly 
from  material  which  the  author  had  collected  during  his  lifetime) , 
and  it  is  believed  that  the  Principles  of  Equity  Jurisprudence  as 
they  exist  to-day  will  be  found  accurately  stated  in  the  text 
explained  by  the  notes.  While  the  author's  practice  of  avoiding 
a  superabundance  of  citations  has  been  followed,  yet  care  has 
been  taken  to  include  the  most  recent  authorities,  both  English 
and  American. 

In  the  present,  as  in  the  seventh  edition,  the  subjects  of  Trusts, 
Strikes,  Boycotts,  and  Trade-Marks  have  received  particular 
consideration. 

The  editor  takes  pleasure  in  acknowledging  the  invaluable 
assistance  of  Josej)h  D.  McCoy,  Esq.,  of  the  Philadelphia  Bar,  in 
every  department  of  tlir  work. 

S.  B. 


July,  1909. 


fi6V774. 


Ul 


PREFACE  TO  THE  SEVENTH  EDITION. 


In  the  present  edition  of  this  book,  references  to  cases  have 
been  brought  down,  as  far  as  possible,  to  the  date  of  going  to 
press.  In  some  few  instances  citations  have  been  stricken 
out,  where  they  seemed  to  be  mere  repetitions.  Such  changes, 
also,  have  been  made  in  the  text  as  were  thought  to  be  required 
by  accuracy;  and  such  additions  thereto  have  likewise  been 
made  as  were  necessary  to  bring  before  the  reader  important 
and  recent  decisions,  upon  such  subjects  as  Trusts  (in  the 
commercial  sense).  Trade  Marks,  Strikes,  Boycotts,  and  other 
topics  which  have,  of  late,  given  rise  to  questions  of  great 
business  importance  and  of  great  legal  interest. 

In  preparing  this  edition  for  the  press  the  writer  is  glad  to 
acknowledge  the  efficient  assistance  of  Alfred  M.  Mohr  and 
Joseph  D.  McCoy,  Esqs.,  of  the  Philadelphia  Bar,  and  of  Edgar 
H.  Boles,  Esq.,  of  the  Law  Department  of  the  University  of 
Pennsylvania. 

G.  T.  B. 

January,  1905. 


PREFACE  TO  THE  FIRST  EDITION. 


During  the  past  few  years  the  growth  of  equit}^  jurispru- 
dence, both  in  a  scientific  and  a  practical  aspect,  has  been  very 
great. 

The  decisions  of  the  courts,  especially  in  England,  have  been 
marked  by  a  freshness  and  a  vigor  which  have  infused  new  life 
into  the  whole  body  of  chancery  law,  and  have  rendered  it  not 
only  attractive  to  the  student,  but  of  immense  usefulness  in  its 
application  to  the  business  affairs  of  men. 

This  practical  usefulness  has  been  extended  by  statute  as  well 
as  by  judicial  decisions;  and  legislation  upon  this  subject  has, 
in  England,  culminated  in  the  passage  of  the  Supreme  Court  Ju- 
dicature Act  of  1873,  by  which  it  is  provided  that  the  principles 
of  equity  shall  hereafter  be  adopted  for  the  purposes  of  the  ad- 
ministration of  justice  in  all  the  courts. 

To  a  certain  extent  the  literature  of  this  branch  of  the  law 
has  kept  pace  with  the  growth  of  the  law  itself.  Treatises  are 
constantly  being  produced  in  which  particular  subjects  con- 
nected with  the  jurisprudence  of  courts  of  chancery  are  ably 
and  elaboratel}'  discussed;  and  works  upon  Trusts,  Injunctions, 
Fraud,  Estoppels,  and  kindred  topics,  liave  inultii^licd  in  the 
libraries  of  the  profession.  Moreover,  in  Englantl,  efforts  have 
been  made  to  generalize  the  progress  whicli  the  science  of  equity 
has  been  making;  and  several  treatises,  of  a  more  or  less  com- 
prehensive character,  have  been  written  in  which  the  advances 
of  the  law  in  this  great  field  of  justice  have  been  pointed  out. 

In  the  United  States,  however,  scarcely  any  attempt  has  been 
made  recently  in  this  direction.     The  efforts  of  those  members 

vii 


Vlll  PREFACE    TO    THE    FIRST    EDITION. 

of  the  profession  who  have  the  time  and  inclination  to  devote 
themselves  to  legal  literature  have  been  directed  towards  the 
production  of  treatises  upon  particular  subjects,  or  to  the  an- 
notation of  existing  standard  commentaries.  Hence,  there 
seems  to  have  arisen  a  want  for  some  general  work  in  which  the 
development  and  present  condition  of  equity  jurisprudence 
should  be  expressed. 

The  present  treatise  is  an  attempt  to  supply  this  want.  The 
effort  has  been  to  explain  the  modern  doctrines  of  courts  of 
equity,  and  to  illustrate  the  manner  in  which  they  have  been 
applied;  and  at  the  same  time  to  exemplify  and  define  the 
principles  of  equity  as  they  have  existed  in  the  English  law 
from  the  earliest  times. 

It  will  be  seen,  upon  examination,  that  the  general  plan 
of  the  treatise  is  based  upon  the  division  suggested  by  Mr. 
Spence  in  his  celebrated  work  upon  the  Jurisdiction  of  the  Court 
of  Chancery,  viz.,  Equitable  Titles,  Equitable  Rights,  and 
Equitable  Remedies;  but  that  the  arrangement  of  the  subtlivi- 
sions  under  these  general  heads  is  to  a  great  extent  original. 

As  the  present  book  is  designed  for  students  as  well  as  for 
practitioners,  one  great  object  has  been  to  avoid  a  superabun- 
dance of  citations  upon  the  one  hand,  and  upon  the  other  an\' 
omission  of  authorities  by  which  the  doctrines  stated  in  the  text 
ought  to  be  verified  and  illustrated. 

It  cannot  be  hoped  that  the  proper  mean  between  these  two 
extremes  has  been  always  observed;  but  it  is  trusted  that  the 
authorities  cited  have  been  sufficiently  numerous  tto  give  to  the 
practitioner  in  ever}^  State  the  benefit  of  decisions  of  his  own 
courts  upon  the  subjects  attempted  to  be  explained,  while,  at 
the  same  time,  care  has  been  taken  not  to  overcrowd  the  treatise 
with  masses  of  authorities  upon  single  points. 

In  citing  particular  decisions  at  any  length,  selections  have 
generally  been  made  from   the  modern  reports,  partly  because 


PREFACE   TO    THE    FIRST   EDITION.  IX 

such  volumes  are  usually  within  the  convenient  reach  of  almost 
every  reader,  and  partly  because  in  them  (and  particularly 
those  which  contain  the  decisions  of  the  English  equity  judges 
of  the  present  time)  the  doctrines  sought  to  be  explained  have 
been  most  elaborately  discussed,  and  their  application  most 
practically  illustrated.  For  the  same  and  other  obvious  reasons, 
the  treatises  upon  particular  subjects  which  have  been  referred 
to  have  almost  invariably  been  those  of  writers  of  the  present 
day. 

It  need  hardly  be  said,  however,  that  while  for  the  purpose 
of  presenting  a  view  of  equity  jurisprudence  as  it  now  exists, 
modern  treatises  have  been  consulted  and  modern  authorities 
cited,  yet,  at  the  same  time,  regard  has  been  always  had  to  the 
ancient  decisions  wherein  the  principles  of  equity  have  had 
their  birth  and  their  early  development.  Every  writer,  as  well 
as  every  student,  should  always  have  in  his  recollection  the  ad- 
vice of  Sir  Edward  Coke,  ''  that  in  reading  an}^  of  these  new 
reports  he  neglect  not  the  reading  of  the  old  books  of  j^ears 
reported  in  former  ages,  for  assuredly  out  of  the  old  fields  must 
spring  and  grow  the  new  corn." 

G.  T.  B. 

Philadelphia,  February,  1874. 


TABLE   OF  C0A^TE:N^TS. 

[the  refrrencks  are  to  the  sectioxs.] 


INTRODUCTION. 


CHAPTER  I. 


RISE  AND  PROGRESS  OF  THE  HIGH  COURT  OF  CHANCERY, 


1.  Definition   of  equity. 

2.  Importance  of  the  histor.eal  view 

of  equity. 

3.  Early  English  courts;  the  councils 

of  the  king. 

4.  Ordinary   council,   or  curia  rcgi.'^; 

Exchecjuer  and  Common  Pleas. 

5.  Court   of   King's   Bench. 
0.  Position  of  the  chancellor. 

7.  Origin  of  his  extraordiuai'v  juris- 

diction. 

8.  Cases    in    which    tliis   jurisdiction 

was  exercised. 

9.  General  conclusions  <leduced  from 


the  above — writ  of  subpoena — 
pleading  and  evidence. 

10.  Progress  of  the  jurisdiction  of  the 

chancellor. 

11.  Changes    in    the  English  system 

introduced  b\'  Act  of  August  o, 
1873. 

12.  Principles  of  equity  adopted   in 

tlie  United  States. 

13.  Jurisdiction  of  the  federal  courts. 

14.  Changes  of  mode  of  procedure  in 

some  of  the  States. 
1.").  Classification  of  the  States  upon 
this   .subject. 


CHAPTER  IT. 


GENERAL    OUTLINE    OF    EQUITABLE    JURISDICTION. 


16.  Three  great  divisions  of  equity. 

17.  Equitable  titles;  example. 

18.  Equitable  rights;  example. 

19.  Equitable   remedies;  example. 

20.  Subjects  of  equitable  jurisdiction; 

Trusts. 

21.  Mortgages. 

22.  Assignments. 

23.  Accident  and  Mistake. 

24.  Fraud. 

25.  Notice;   Estoppel;  Election. 


26. 

27. 


28. 
29. 
30. 
31. 


Conversion. 

Adjustment;  Set-off;  Contribu- 
tion; Subrogation;  Exonera- 
tion; Marshalling. 

Equitable  liens. 

Specific  performance. 

Injunctions. 

Re-execution;  Reformation;  Re- 
scission; Cancellation. 

Account;  Dower;  Partition;  Con- 
fusion of  boundaries;  Rent. 

xi 


Ml 


COXTEXTS. 


33.  Partnership  bills;  Creditors'  bills; 

Administration  suits. 

34.  Infants,  idiots  and  lunatics. 

35.  Discovery;  Commissions   to  ex- 

amine witnesses  abroad;  Per- 


petuation  of  testimony;   Ex- 
aminations de  bene  esse. 
36.  Bills  quia  timet;  Receivers;  Writs 
of  ne  exeat;  Writs  of  suppHca- 
vit. 


CHAPTER  III. 


MAXIMS     IN     EQUITY. 


37.  Definition;   No  right  without  a 

remedy. 

38.  Equity  follows  the  I^aw. 

39.  \'igilanlibus     nori     dormientihus 

.'EquUas  subvenit. 
Between  equal  equities  the  law 

will  prevail. 
Equality  is  Equity. 
42.  He  who  comes  into  Equity  must 

do  so  with  clean  hands. 


40 


41 


43.  He  who  seeks  Equity  must  do 

Equity. 

44.  Equity  looks  upon  that  as  done 

which  ought  to  be  done. 

45.  Between   equal  equities  priority 

of  time  will  prevail. 

46.  Equity  imputes  an  intention  to 

fulfil  an  obligation. 

47.  Equity  acts  in  personain. 

48.  Equity  acts  specifically. 


PART  I. 

EQUITABLE    TITLES. 
CHAPTER  L 

TRUSTS  ;    THEIR    ORIGIN,    HISTORY,    AND    GENERAL    NATURE. 


49.  Definition   of  Trusts. 
'){).   Distinction  between  Trusts  and 
Fidei  Comynissa. 

51.  Origin  of  Trusts. 

52.  Trusts    before    the    Statute    of 

Uses;  Statute  1  Rich.  III.,  c.  1. 

53.  Statute  of  Uses;  27  Hen.  VIII., 

c.  10. 

54.  General  nature  of  Trusts;  ActiAe 

and    Passive   Trusts. 

55.  When  trusts  will  be  executed  by 

the  Statute;  Rules  in  several 
States. 

56.  Lawful  and  Unlawful  Trusts. 


57.  Executed  and  Executory  Trusts; 
(Uenorchy  v.  Bosville ;  Sack- 
ville-West  v.  Hoimesdale. 

.58.  Reformation  of  executory  instru- 
ments   creating   trusts. 

.59.  Public  and   Private  Trusts. 

60.  General  rules  for  the  de\oIution 

of  Equitalile  Estates. 

61.  Alienation  of  Equitable  Estates; 

Liability  for  debts. 

62.  Exceptions  to  the  general  rules  of 

devolution    of   Equitable   Es- 
tates. 


CONTENTS. 


Xlll 


CHAPTEK  TI. 

EXPRESS   TRUSTS  ;     AND    HEREIISr    OF    VOLUNTARY     DECLARATIONS     IN 
TRUST,    OF    PRECATORY    TRUSTS,    AND    OF   POWERS    IN    TRUST. 


63.  Trusts  created  by  direct  fiduciary 

expressions;  trusts  averable  at 
Common  Law. 

64.  Statute  of  Frauds. 

65.  Language  by  which  a  Trust  may 

be  created. 

66.  Voluntary   dispositions  in  trust; 

Milroy  v.  Lord;  Ex  parte  Pye. 

67.  General  result  of  the  authorities; 

Donaldson  v.  Donaldson;  Rich- 
ards y.  Delbridge. 

68.  Voluntary   Assignments   for   the 

benefit   of  Creditors. 

69.  Meritorious  Consideration;  Ellis 

V.  Nimmo. 


72 


73 


70.  Donatio  mortis  causa. 

71 .  Trusts     created     by     Precatory 

Words;  English  doctrine. 
Doctrine  on   this  subject  in  the 

United    States    generally;    in 

PeiHisjdvania  and  Connecticut. 
What  precatory  words  will  create 

a  trust. 

74.  Are  such  words  prima  facie  im- 

perative? 

75.  Certainty  of  the  object  is  an  ele- 

ment for  consideration. 

76.  Certainty  of  the  Subject. 

77.  Powers    in    trust;    Salusbury    v. 

Denton,  s 


CHAPTER  III. 


IMPLIED  TRUSTS. 


78.  Implied  Trusts  of  two  kinds;  Re- 

sulting Trusts  and  Construct- 
ive Trusts. 

79.  Resulthig  Trusts  of  four  kinds. 

80.  Purchase-money    paid    by    one; 

title  taken  in  name  of  another. 

81.  Requisites  to  such  a  trust. 

82.  Statute  of  Frauds. 

83.  Parol  evidence  admissible. 

84.  .\dvancements. 

85.  Trusts  of  this  kind  abolished  in 

certain  States. 

86.  Purchases  by  Trustees  with  trust 

funds;  Following  trust  funds. 


87.  Conveyance  where  trust  is  not  de- 

clared or  fails. 

88.  \Miere  the  beneficial  interest  is 

not  exhausted. 

89.  Exceptions  in  favor  of  charities. 

90.  Conveyances  without  considera- 

tion. 

91.  Constructive  trusts. 

92.  Trustee  cannot  acquire  rights  an- 

tagonistic to  cestui  que  trust. 

93.  Extent   of   this    rule. 

94.  Trustee   cannot  purchase  at  his 

own  sale. 

95.  Other  Constructive   Trusts. 


CHAPTER  IV. 

TRUSTS    FOR    MARRIED   WOMEN. 


96.  Rights  of  Husband  at  common- 

law  in  wife's  property, 

97.  Statutory  changes. 


98.  Creation   of  trusts  for  sole  and 

separate  use. 

99.  Trustee   not   necessary. 


XIV 


CONTENTS. 


100.  Xo  particular  words  necessary. 

101.  Power  of  married  women  over 

separate  estate. 

102.  Liability  of  separate  estate  to 

her  engagements. 

103.  Rules  in  the  United  States  upon 

this  subject. 

104.  Restraints  on  anticipation. 

105.  For  whose  benefit  separate  es- 

tates may   be   created. 

106.  Rules  in  the  United  States  up- 

on this  subject. 


107.  General     conclusions;     Lewin'* 

propositions. 

108.  Pin-money  trusts. 

109.  Wife's  equity  to  a  settlement. 

110.  How  enforced. 

111.  How  waived. 

112.  To  what  property   it  attaches. 

113.  Against   whom,   and    in    whose 

favor. 

114.  Gifts  from  husband  to  wife;  con- 

tracts. 

115.  Contracts  for  separation. 


CHAPTER  V. 


TRUSTS    FOR    CHARITIES. 


116.  Uncertainty    in    the    object    a 

characteristic  of  a  charitable 
use. 

1 1 7.  Importance  of  charitable  uses, 
lis.  Origin  of  charitable  uses;  ]'idal 

V.  Girard's  Executors. 

119.  Statute  of  Elizabeth. 

120.  Classification  of  charitable  gifts; 

Gifts    for   eleemosynary    pur- 
poses. 

121.  Gifts  for  ('(lucatioiial  purpo-ses. 

122.  Gifts   for   religious   purposes. 

123.  Gifts   for   public   purposes. 

124.  Definition   of  a  charitable  use; 

Mr.  Biniicy's  definition;  Jack- 
son V.  Phillips. 


125.  Characteristics  of  a  charitable 

use;  uncertainty  of  the  object. 

126.  The  Cy  pres  doctrine. 

127.  Jackson  v.  Phillips. 

128.  Cy    pres   doctrine    in    England, 

prerogative   and   judicial. 

129.  Soundness  of  the  latter  doctrine. 

130.  Rules  of  the  different  States. 

131.  Nature  of  the  uncertainty  whicli 

should  avoid  a  charitable  gift. 

132.  Resulting  trusts  in  cases  of  char- 

itable gifts  ;  Thctford  School 
C  'ase. 

I'.V.'i.  Perpetuities  and  Accumula- 
tions. 

134.  Statutes  of  Mortmain. 


CHAPTER  YI. 


TRUSTEES  :     THEIR   POWERS    AND    DUTIES. 


135.  Jurisdiction  of  Courts  of  Equity 

over  trustees. 

136.  Wlio  may  be  a  trustee;  corpora- 

tions. 

137.  Acceptance  of  the  trust. 

138.  General  duties  of  trustees. 

139.  Conversion    of    securities;    de- 

posits. 

140.  Investments  by  trustees.     Eng- 

lish rule. 

141.  Rules   in    the   Ignited   States. 

142.  When    trustees   are    chargeable 

with  iutcroist. 


143.  Trustee  cannot  use  his  position 

for  his  own  advantage. 

144.  Compensation   of  trustees;  dif- 

ference between  Englisii  rule 
and  that  in  most  of  the  United 
States. 

145.  Trustee  cannot  delegate  his  au- 

thority. 

146.  Responsibility    for  acts   of   co- 

trustee. 

147.  Remedies  for  breach  of  trust. 

148.  Trustees'  accounts. 


CONTEXTS. 


XV 


CHAPTER  VII. 


MORTGAGES. 


149.  The  law  of  Mortgages  no  longer 

peculiar  to  Equity. 

150.  Nature  of  a  Mortgage;  origin  of 

Equity  of  Kedemption. 

151.  Nature   of   the    Equity   of   Re- 

demption; limitations. 

152.  Nature  of  Mortgagor's  title   in 

England;  in  the  United  States. 

153.  Once    a    mortgage,    always    a 

mortgage. 

154.  Distinction  between  mortgages 

and    conditional    sales. 


155.  .\bsolute  deed  may  \)e  shown  to 

be   a    mortgage. 

156.  Foreclosure   suits. 

157.  Rights  and  duties  of  mortgagor 

and  mortgagee. 

158.  Tacking. 

159.  Mortgages  to  secure  future  ad- 

vances. 

160.  Merger;  sometimes  prevented  in 

Equity. 

161.  Equitable  mortgages  to  be  con- 

sidered under  Liens. 


CHAPTER  YIII. 


ASSIGNMENTS. 


162.  Common-law  rule  forbidding  as- 

signment of  choses  in  action. 

163.  Exceptions. 

164.  Such    assignments    allowed    in 

equity. 

165.  Assignments  of  future  property; 

Holroyd  \.  Marshall;  Tailby  \. 
Official  Receiver. 

166.  Exceptions  to  the  general  rule. 

167.  Requisites  to  an  equitable  as- 

signment. 

168.  AVhen  notice  of  assignment  nec- 

essary; to  whom  given. 


169.  Authorities  in  the  United  States 

conflicting. 

170.  Effect  of  equitable  assignments; 

assignment  is  subject  to  equi- 
ties between  original  parties. 

171.  ^Vhether  assignment  is  subject 

to  equities  of  third  parties. 

172.  Rights  of  action  of  the  assignee 

at  law;   in  equity. 

173.  Liability  to  be  sued  cannot  be 

transferred;    exceptions. 


PAIIT  IT. 

EQUITABLE    RIGHTS. 
'     CHAPTER  T. 

ACCroENT    AND    MISTAKE. 


174.  Definition  of  Accident. 

175.  Limitations  upon  the  relief  af- 

forded  in  equity. 

176.  Cases    in    wliich    relief    will    be 

afforded. 


1 77.  Lost  instruments;  ad vantfigep  of 

remedy   in  equity. 
17S.   Penalties. 
179.  Liquidated  damages. 


XVI 


CONTENTS. 


180.  Agreements    for    redaction    of 

debt. 

181.  F'orfeitures. 

182.  Defective  execution  of  powers. 

183.  Miscellaneous  cases. 

184.  Equitable  remedies  in  cases  of 

Mistake. 

185.  Definition  of  Mistake. 

186.  Mistakes  of  two  kinds — of  Law 

and  of  Fact. 

187.  Mistakes  of  Law;  Hunt  v.  Rous- 

manier's  Admr's;  Griswold  v. 
Hazard. 


188.  Misrepresentation  and  .Surprise, 

189.  Compromises  of  doubtful  rigbts; 

family  arrangements. 

190.  Mistakes      of    Fact;      different 

kinds. 

191.  Must  be  mutual,  material,  and 

not    induced    bj^    negligence. 

192.  Defective  execution  of  powers. 

193.  What  defects  may  be  remedied. 

194.  For  whose  benefit. 
19.5.  Against    whom. 
196.  Miscellaneous  cases. 


CHAPTER  II. 

FRAUD. 

SECTION  I. 

GENERAL    NATURE    OK    FRAUD  ;     ACTUAL    FRAUD. 


197.  Importance  and  general  nature      208. 

of    equitable    jurisdiction     in 
cases  of  Fraud. 

198.  Distinctions  between  the  relief      209. 

at  law  and   in  equity.  210. 

199.  Limitations  upon   the  jurisdic- 

tion   of    equity    in    cases    of      211 
Fraud;  Fraud  in  obtaining  a      212. 
will;  Allen  v.  M'Pherson.  213. 

200.  Concurrent    jurisdiction    of  eq-      214. 

uity. 

201.  Exclusive  jurisdiction. 

202.  Fraudulent    transactions    \oid- 

able,    not    absolutely    void.  21.5. 

203.  Within  what  time  redress  must 

besought.  216. 

204.  Fraudulent    transactions    nuist 

be  adopted  or  .set  aside  in  tofo. 
20.5.  General  division  of  the  subject      217. 
of    Fraud. 

206.  General  nature  of  actual  fraud.       218. 

207.  Matters  of  opinion. 


Prospectuses  of  projected  com- 
panies ;  Central  Railway  Co. 
V.  Kiscfi. 

Puffing  ;  Mortimer  v.  Bell. 

Fraud  on  owner  of  property 
sold  at  auction. 

Matters  of  intention. 

blatters  of  law. 

Suppressio  veri. 

Knowledge  of  the  truth  or 
falsehood  by  party  making 
the  representations;  classifica- 
tion of  cases  on  the  subject. 

Representation  must  be  relied 
on. 

Representation  must  be  mate- 
rial; dolus  dans  locum  con- 
iracivi. 

Party  deceived  must  be  injured; 
representations   by   agents. 

Trustees  ex   maleficio. 


SECTION  II. 

FRAUD    ARISING    FROM    THE    INTRINSIC    NATURE    OF   THE   TRANSACTION. 


219.  Contracts  void  by  reason  of 
their  terms;  Inadequacy  of 
consideration. 


220.  Iiargains    by    reversioners    and 

expectant  heire. 

221.  Change  of  the  law  in  England. 


CONTENTS. 


XA'Il 


222.  Usurious  contracts. 

223.  Gambling  contracts. 

224.  Contracts    void    by    reason    of 

their  subject-matter;  Ex  turpi 
causa  non  oritur  actio. 

225.  Gifts  in  restraint  of  marriage; 

rule  of  the  Roman  Law. 


226.  Conditions  in  general  restraint 

of    marriage. 

227.  Conditions  in  partial   restraint. 

228.  Contracts  in  restraint  of  trade. 

229.  Sales  of  public  offices. 


SECTION  III. 


FRAUD    PRESUMED    FROM    THE    RELATIONS    OF    THE    PARTIES. 


230.  Mental  disability;  drunkenness; 

duress. 

231.  Undue    influence  ;    gifts  ;  Hu- 

guenin  v.  Baseley. 

232.  Contracts  ;   Tate  v.    Williamson. 

233.  Parties  between  whom  confiden- 

tial relation  ordinarily  exists. 


234.  Guardian  and  ward. 

23.5.  Parent  and  child. 

236.  Solicitor  and  client. 

237.  Trustee  and  cestui  que  trust. 
2.38.  Fiduciary  can  make  no  profit; 

Tyrrell  v.  Bank. 

239.  Promoters  of  companies. 


SECTION  IV. 


FRAUD    AFFECTING    THIRD    PARTIES;     GENERAL    RULES    A3    TO    FRAUD. 


240.  Subdivisions   of  frauds   of    this 

class;  fraud  upon  creditors. 

241.  Statute  13  Elizabeth,  c.  .5. 

242.  Jurisdiction   of  equity  in  cases 

under  the  statute. 

243.  Conveyance  must  be  for  a  good 

consideration    and    bona   fide. 

244.  Moral  obligations;  consideration 

of  marriage. 
24.5.  Voluntary     transfers;     convey- 
ances   by    persons    indebted. 

246.  Conveyances  of  property  which 

could  not  be  reached  by  exe- 
cution. 

247.  Gifts  from  husband  to  wife. 

248.  Parties    by    whom    fraudulent 

conveyances  may  be  avoided. 

249.  Secret  agreements  touching  com- 

position deeds. 

250.  Fraud    upon    subsequent    pur- 

chasers; Statute  27  Eliz.,  c.  4. 

251.  Difference  between  the  English 

and   American   rules. 

252.  Statute  not  applicable  to  per- 

sonal chattels. 


253. 
2.54. 

2.55. 
256. 

257. 

258. 


2.59. 


260. 


Fraud  on  marital  rights;  Strath- 
more  V.  Bowe.<<. 

Ignorance  of  the  husband  as  to 
the  existence  of  property  im- 
material. 

Circumstances  which  constitute 
fraud   on   marital   rights. 

Fraud  on  powers;  Aleyn  v.  Bel- 
ch ier. 

Appointment  must  be  made 
solely  to  carry  out  the  purpose 
of  the  power;  Topham  v.  The 
Duke  of  Portland. 

Admissibility  of  parol  evidence 
to  vary  or  contradict  written 
instruments  in  cases  of  fraud; 
Woollam  V.  Hearn  ;  Gillespie 
V.  Moon. 

How  the  right  to  impeach  a 
fraudulent  transaction  may  be 
lost;  confirmation;  release; 
acquiescence. 

Delay;  bona  fide  purchasers  for 
value. 


B 


XVIU 


CONTENTS. 


CHAPTER  III. 


NOTICE. 


261.  Doctrine  of  notice  not  applica- 

ble to  contests  between  purely- 
legal  titles. 

262.  Applicable   to  equitable   titles; 

Le  Neve  v.  Le  Neve. 

263.  Illustrations  of  the  doctrine. 

264.  Parties  by  whom  want  of  notice 

may  be  set  up.  Rules  on  this 
subject. 

265.  Extent  of  protection  afforded  by 

want  of  notice. 

266.  English   rule   that   payment   of 

purchase-money  and  acquisi- 
tion of  legal  title  must  both 
precede  notice. 

267.  Rule  in  United  States;  protec- 

tion pro  lanto. 

268.  Notice  actual  and  constructive; 

actual  notice  either  direct  or 
presumptive. 


269.  Constructive  notice;  Vice-Chan 
cellor  Wigram's  division. 

Notice  by  registration. 

What  registration  will  operate 
as  notice. 

Effect  of  actual  notice  of  un- 
registered   conveyance. 

Constructive  notice  of  same. 

Lis    Pendens. 
275.  Plea  of  bona  fide  purchaser  for 
value. 

Can  be  used  by  the  holder  of  an 
equitable   title. 

Doctrine  of  seeing  to  the  appli- 
cation   of   purchase-money. 

Abolished  in  England. 

Of    little     importance     in    the 
United    States. 


270. 
271. 

272. 

273. 

274. 


276. 

277. 

278. 
279. 


CHAPTER  IV. 


EQUITABLE  ESTOPPEL  ;  ELECTION. 


282. 


283. 


280.  Definition  of  estoppel. 

281.  Different     kinds     of     estoppel; 

legal  estoppels  in  pais. 

Equitable  estoppel  or  estoppel 
by  conduct;  founded  on  fraud. 

A  party  may  be  estopped  by  the 
assertion  of  an  untruth;  Con- 
gregation V.  Williams. 

284.  A  party  may  be  estopped  by  the 

concealment     of     the     truth; 
Pickard  v.  Sears. 

285.  Conduct    which    works    an    es- 

toppel must  be  external  to  the 
contract. 

286.  Representations  between  party 

alleging    estoppel    and    party 
estopped. 

287.  Representations  between  party 

alleging    estoppel    and    third 
party. 


288.  Representations     need    not    be 

known  to  be  false    by    party 
making  them. 

289.  Must    operate    to    deceive    the 

party  to  whom  they  are  made. 

290.  Intention   that   conduct  should 

be  acted  on  must  exist. 

291.  Estoppel  must  be  actually  pro- 

duced b}^  the  conduct. 

292.  Estoppel  is  limited  to  the  repre- 

sentations made. 

293.  Estoppels  in  the  cases  of  mar- 

ried women  and  infants. 

294.  Estoppels     bmd     parties    and 

privies. 

295.  Election;    definition    and     ex- 

ample. 

296.  Of   two   kinds;   expressed   and 

implied. 


CONTENTS. 


XIX 


297. 


298. 


299. 
300. 
301. 


Importance    of   the   distinction 

between    the    two. 
Circumstancos  under  which  tlie 

doctrine     of    election     arises; 

illustrations. 
After-acquired  lands. 
Powers. 
Donor  must  give  property  of  his 

own. 


302.  Property  of  the  donee  must  be 

also  given. 

303.  Gifts  must  be  b}'  the  same  in- 

strument. 

304.  Manner  in  which  election  may 

be  made. 

305.  Consequence   of  an   election    is 

compensation,   not   forfeiture. 

306.  Application  of  doctrine  of  elec- 

tion to  case  of  creditors. 


CHAPTER  V. 


CONVERSION    AND    KECONVERSION. 


307.  General   nature   and   extent   of 

equitable  conversion. 

308.  Example;    Fletcher    v.    Ashbur- 

ner. 

309.  Conversion     may     take     place 

eithei-  under  a  trust  or  under 
a  contract. 

310.  What  language  is  necessary  to 

effect  a  conversion . 

311.  In  what  ways  a  trust  to  convert 

may  be  made  imperative. 

312.  Question   of  conversion   one   of 

intention. 

313.  Contract,  to  work  a  conversion, 

must  be  binding. 

314.  General  results  of  a  conversion; 

qualifications. 

315.  Failure  of  the  purposes  of  a  con- 

version; resulting  trust. 


316.  Ackroyd  v.  Smithson;  Smith  v. 

Claxton. 

317.  ConA^ersion    "out    and    out." 

318.  Doctrine  in   the   United  States 

on   this  subject. 

319.  Conversion    under    instruments 

inter  vivos. 

320.  Time  from  w-hich  a  conversion 

takes  place. 

321.  Conversion  under  optional  con- 

tracts. 

322.  Reconversion  may  be  by  act  of 

party  or  by  act  of  law. 

323.  Election   to   reconvert   maj''  be 

either  by  express  declaration 
or  by  acts. 

324.  By  whom  such  election  may  be 

made. 

325.  Reconversion   by   operation    of 

law. 


CHAPTER  VI. 


ADJUSTMENT. 


326.  Equities  to  be  considered  under 

Adjustment;  Set-off,  Contri- 
bution, Exoneration,  Subroga- 
tion, and  Marshalling. 

327.  Set-off. 

328.  Contribution;  ap{)licaiion   most 

frequent  in  case  of  sureties. 

329.  Xo   contribution   originallj-  en- 


forceable at  law;  advantages 
of   equitable    proceeding. 

330.  General  rules  as  to  right  of  con- 

tribution. 

331.  Exoneration;  not  originally  ei>- 

forceable  at  law. 

332.  Cases  in  which  these  equities  are 

usuallj'  applied. 


XX 


CONTENTS. 


333.  Sales    of    different    parcels    of 

mortgaged  land  to  successive 
purchasers. 

334.  General  average. 

335.  Subrogation ;  nature  of  the  right. 

336.  Judgment    may   be   kept   alive 

after  it  is  paid,   in  order  to 
protect  equities. 

337.  Extent  of  the  doctrine  of  sub- 

rogation. 

338.  Qualifications. 

339.  Surety  can  compel  a  creditor  to 

make    a    prompt    use    of    his 
remedies. 

340.  Marshalling. 

341.  TTsually    enforced    through    the 

medium  of  subrogation. 

342.  How  the  equity  of  marshalling 

is  sometimes  qualified. 


.343. 


344. 


345. 


346. 


347. 

348. 
349. 

350. 


Its  application  in  cases  of  bank- 
ruptcy. 

Cases  in  which  this  equity  is 
usually  applied  in  the  United 
States;  doctrine  of  Fosdick  v. 
Schall. 

Marshalling  as  applied  to  es- 
tates of  decedents. 

Order  in  which  assets  of  a  dece- 
dent are  applied  to  the  pay- 
ment of  his  debts. 

How  the  general  personalty 
may   be   exonerated. 

Exoneration   by   implication. 

When  realty  and  personalty 
contribute    pro   rata. 

Assets  will  not  be  marshalled  in 
favor  of  a  charity. 


CHAPTER  YII. 


LIENS. 


351.  Distinction    between     liens    at 

common  law  and  in  equity. 

352.  Instances  of  equitable  liens. 

353.  Vendor's     lien     for     purchase- 

money. 

354.  Nature  of  this  lien. 

355.  Waived  b}^  taking  independent 

security. 


356. 

357. 
358. 
359. 
360. 


Parties  for  and  against  whom 

the  lien  exists. 
I3eposit  of  title  deeds. 
Mortgages  of  personalty. 
Pledges. 
Liens   in  aid  of  equitable  and 

legal  rights. 


PART  III. 

EQUITABLE    REMEDIES. 
CHAPTER  I. 

SPECIFIC    PERFOKMANOE. 


36t.  General  nature  of  this  equitable 
remedy. 

362.  Inadeciuacy      of      common-law 

leuietlies. 

363.  Other  grounds  of  the  superiority 

of  the  remedj-  in  equity. 


364.  Contracts  for  the  sale  of  real 

estate. 

365.  May  be  enforced  between  origi- 

nal   parties    and     those    who 
claim  under  them. 


CONTENTS. 


XXI 


366.  May  be  enforced  as  to  real  estate 

outside  of  the  jurisdiction. 

367.  Covenants  for  further  assurance. 

368.  Personal  property. 

369.  When  damages  cannot  be  ascer- 

tained. 

370.  Other  contracts. 

371.  Specific    performance    rests    in 

discretion  of  the  court. 

372.  Contract  must  be  founded  on  a 

valuable  consideration. 

373.  Meritorious  considerations. 

374.  Adequacy. 

375.  Performance  in  specie  must  be 

necessary. 

376.  Must  be  in  accordance  with  gen- 

eral  equitable   doctrines. 

377.  Contract  must  be   mutual,  cer- 

tain, and  practicable. 

378.  Purchaser   not    compellable    to 

accept  a  doubtful  title. 

379.  Pyrke  v.  Waddingham. 

380.  Other  rules  as  to  title. 

381 .  Parol  variations  of  written  con- 

tracts;   Townshend.    \.    Stnng- 
room. 

382.  Authorities  in  the  United  States. 

383.  Statute  of  Frauds;  exceptions. 


384.  Part  performance. 

385.  What  constitutes  part  perform- 

ance. 

386.  When  the  reduction  of  the  con- 

tract to  writing  is  prevented 
by  fraud. 

387.  When  the  parol  contract  is  ad- 

mitted  in   the   answer. 

388.  Specific  performance  with  coni- 

pensation  for  defects. 

389.  ^^^len    tlie    purchaser    may    be 

compelled  to  take. 

390.  When   he   may   elect   to   take; 

limitations  upon  this  doctrine. 

391.  Time  to  make  out  a  title  beyond 

the  da}-. 

392.  Due    diligence    required. 

393.  Rule  altered  by  express  stipula- 

tions, or  by  presumptions 
growing  out  of  the  nature  of 
the  contract. 

394.  Surrounding   circumstances. 

395.  Compensation;         Sir        Hugh 

Cairns^s    Act. 

396.  Doctrine  in   the  United  States. 

397.  Parties  compelled  to  make  good 

their    representations. 

398.  Enforcing  negative   covenants. 


CHAPTER  II. 

INJUNCTIONS. 

SECTION   I. 

GENERAL  NATURE  OP  INJUNCTIONS  ;  INJUNCTIONS  TO  RESTRAIN  INFRINGE- 
IIENT  OF  EQUITABLE  RIGHTS  ;  AND  HEREIN  OF  INJUNCTIONS  TO  RE- 
STRAIN PROCEEDINGS  AT  LAW;  OF  BILLS  OF  PEACE;  AND  OF  BILLS 
OF    INTERPLEADER. 


399.  Definition    of   an    injunction. 

400.  Injunctions  either  mandatory  or 

prohibitory;     mandatory     in- 
junctions. 

401.  Prohibitory    injunctions. 

402.  Character  of  the  equitable  rem- 

edy by  injunction. 

403.  Classification  of  injunctions;  in- 

terlocutory   and    perpetual. 


404.  Ex  parte,  or  at  the  hearing. 

405.  Common,  or  special. 

406.  General  division  of  the  subject 

of  injunctions. 

407.  Injmictions  to  restrain  proceed- 

ings at  law;  Earl  of  Oxford's 
Case. 

408.  Not  in  the  nature  of  Writs  of 

Prohibition. 


XXll 


CONTENTS. 


409.  General  nature  of  this  jurisdic- 

tion. 

410.  General  extent  of  this  jurisdic- 

tion; equitable  titles  protected. 

411.  Equitable  rights  protected. 

412.  Equitable   remedies   assisted. 

413.  Injunctions    to    prevent    vexa- 

tious   litigation;    election    be- 
tween  remedies. 

414.  Injunctions  after  the  court  has 

assumed     jurisdiction     of     a 
cause. 
41.').   Bills  of  Peace,  two  classes;  as- 
sertion of  a  common  right. 

416.  Sheffield   Water   Worka   v.    Yeo- 

maiis. 

417.  General    rules    as    to    Bills    of 

Peace     of     the     first     class; 
Phillips  V.  Hudson. 


418.  Bills    of    Peace    of   the   second 

class. 

419.  Bills  of  Interpleader. 

420.  Bills    must   show    title    in    two 

claimants. 

421.  Complainants    nni.st    claim    no 

interest. 

422.  Debt    or    duty    must    be    the 

same. 

423.  Injunctions  in   aid   of  proceed- 

ings in   Bankruptc}-. 

424.  In  what  courts  proceedings  will 

be  restrained. 

425.  Injunctions   in    cases   of   trusts 

and  mortgages. 

426.  Injunctions    between    partners. 

427.  Restraint  of  disclosure  of  confi- 

dential   communications. 


SECTION  II. 


INJTNCTIOK.S    TO    PROTECT    LEGAL    RIGHTS. 


428.  Classification  of  cases  in  which 

Injunctions    issue    to    protect 
legal  rights. 

429.  Waste. 

430.  Common-law     remedies;     their 

defects. 

431.  Reasons  for  remedy  in  equity. 

432.  Nature  of  Waste. 

433.  Parties  who  will  be  restrained 

from    committing    waste. 

434.  Equitable   Waste. 

435.  Destructive  Trespass;  origin  of 

jurisdiction  in  such  cases. 

436.  Subdivisions  of  the  subject. 

437.  Public    Companies;     restrained 

from  improperly  taking  land. 

438.  Nuisance. 

439.  Remedies  at  common-law;  their 

defects. 

440.  How  far  complainant's  title  at 

law  must  be  established. 

441.  Different   kinds   of   nuisance. 

442.  Coming  to  a  nuisance. 

443.  Lateral    support    to    soil;    Pur- 

prestures;    Public  Companies. 


444.  Injunction    in    cases   of   Patent 

Right;     Copyright;      Literary 
Property;    and    Trade-marks. 

445.  Inspection. 

446.  Injunction. 

447.  Account. 

448.  Patent  Right. 

449.  Previous  trial  at  law  to  establish 

right  unnecessar}'. 

450.  Copyright. 

451.  Copyright;  in  the  United  States. 

452.  Piracy,  what  it  is. 

453.  Other  requisites  to  an   Injunc- 

tion. 

454.  Literary   Pro  pert}';   Prince   Al- 

bert V.  Strange. 

455.  Questions  as  to  publication. 

456.  Trade-marks. 

457.  What  are  trade-marks. 

458.  Diligence;   colorable  imitations. 

459.  Alienation  of  negotiable  securi- 

ties. 

460.  Preservation  of  property  pend- 

ing  litigation. 


CONTENTS, 


XXlll 


461.  Breach   of  negative   covenants. 

462.  Lumley  v.  Wagner. 

463.  Instances    of    covenants    which 

have  been  restrained. 


464.  Negative  quaUty  imported  into 

affirmative  covenants. 

465.  Injunctions  in  cases  of  Corpora- 

tions. 


CHAPTER  III. 


RE-EXECUTION  ;    REFORMATION  ;    RESCISSION  ;    AND    CANCELLATION, 


466.  Reason    for    the    existence    of 

these  equitable  remedies. 

467.  Re-execution. 

468.  Reformation. 

469.  General  principles  in  .such  cases. 

470.  Admissibility  of  parol  evidence. 

471 .  Reformation  under  presumption 

of  law. 

472.  Rescission;   voidable   contracts, 

how  far  good. 

473.  Cancellation  as  applied   in   the 


rescission     of     voidable     con- 
tracts. 

474.  Cancellation  independent  of  re- 

scission. 

475.  Relief   by    rescission    and    can- 

cellation a  matter  of  judicial 
discretion. 
470.  Compensation. 

477.  Rule    in    England;    Sir    Hugh 

Cairns's  Act. 

478.  No  uniform  i-ule  on  this  subject 

in  the  United  States. 


CHAPTER  IV. 


ACCOUNT  ;    PARTITION  ;    DOWER  ;    BOUNDARIES  ;    RENT, 


479. 


General  nature  of  the  right  to  an 


account. 

480.  Bills  for  Account. 

481.  Inadequacy  of  the  common-law 

remedies. 

482.  Origin  of  the  remedy  in  equity. 

483.  Limitations  upon   this  remedy. 

484.  Extent  of  the  remedy. 

485.  Plea   of  stated   account. 

486.  Leave  to  surcharge  and  falsify. 

487.  Partition;  origin  of  jurisdiction 

of  chancery. 

488.  Disadvantages     of     proceeding 

at   common  law;   changes   by 
statute  in  the  United  States. 

489.  Advantages  of  mode  of  proce- 

dure   in   equity. 

490.  Mode   of   making   partition    in 

equity. 


491.  Difficulties  of  making  partition 

no  objection  to  a  decree. 

492.  Power  to  award  owelty. 

493.  Power  to  order  a  sale. 

494.  Nature  of  Dower. 

495.  Remedy  by  bill  in  eciuity. 

496.  Disadvantages   of   tiie  pn^ceed- 

ing   at    common-law. 

497.  Advantages  of  the  procedure  in 

equity. 

498.  Account  of   meane  profits. 

499.  Multiplicity    of    suits    a\oided. 

500.  Dower  out  of  equitable  estates. 

501.  General  conclusions  as  to  equi- 

table   jurisdiction. 
.502.  Manner  of  assigning  dower. 

503.  Jurisdiction   of  equity  in  cases 

of  Confusion  of  Boundaries. 

504.  In  cases  of  Rent. 


XXIV 


CONTENTS. 


CHAPTER  V. 


PARTNERSHIP    BILLS. 


TjOr).  Reasons  for  resorting  to  equity 
ill  partnership  cases. 

5()(i.  Nature  of  the  contract  of  part- 
nership. 

")()7.  .Many  equitable  remedies  ap- 
plied  to  partnership   cases. 

o08.  Peculiar  remedy  by  Partnership 
Bills;  Bills  for  account  need 
not  pray  a  dissolution. 

509.  Causes  of  dissolution;  Grounds 
for  bills  for  dissolution. 

.'jlO.  Preservation  of  partnership 
property. 

ol  I .  Doctrine  of  conversion  as  ap- 
plied to  partnership  real  es- 
tate; rule  in  England. 

512.  Rule  in  the  United  States. 

513.  Qualifications  of  the  rule. 


514. 
515. 

oU). 


517. 

518. 
519. 
520. 

521. 
522. 
528. 

524. 


Sale  and  account. 

Winding-up  partnerships;  joint 
and    separate   debts. 

Separate  assets  of  deceased 
partner  applied  in  the  first 
instance  to  payment  of  sepa- 
rate debts. 

Extension  of  this  doctrine;  Eng- 
lish rule. 

Rule  in  Tucker  v.  Oxley. 

Bankruptcy  Act  of  1898. 

Jlethod  in  which  joint  creditors 
may  collect  their  debts. 

Remedies  of  separate  creditors. 

Joint  and  separate  executions. 

Suits  between  firms  having  a 
common  member. 

Mines. 


CHAPTER  VI. 


CREDITORS      BILLS    AND    ADMINISTRATION    SUITS. 


525.  Creditors'  Bills;  are  of  two 
classes. 

520.  Creditors'  bills  against  a  debtor 
during  lifetime;  inefhciency  of 
common-law  executions. 

527.  Nature  and  effect  of  the  Equita- 

ble remedy. 

528.  Creditors'    Bills    uf   the   .second 

class;  administration  suits. 

529.  Not  of  great  importance  in  this 

country. 

530.  General  course  of  proceeding  in 

an  administration  suit. 

531.  Eciuitable    Assets;    doctrine    of 


532. 
533. 
534. 
535. 
530. 


538. 

539. 
540. 


comparatively  little  impor- 
tance. 

Origin  of  the  doctrine. 

Silk  V.  Prime. 

Cook  V.  Greg  son. 

Doctrine  of  Performance. 

Covenant  to  settle,  and  subse- 
quent purchase. 

Covenant  to  pay,  and  subse- 
quent intestac}'. 

Satisfaction ;  of  debts  by  lega- 
cies. 

Of  legacies  by  legacies. 

Of  legacies  by  portions;  of  por- 
tions by  legacies. 


CONTENTS. 


XXV 


CHAPTER  YII. 


INFANTS,    IDIOTS    AND    LUNATICS. 


541.  Protection  afforded  to  the  per- 

sons and  estates  of  infants  at 
common  law,  and  by  statute. 

542.  Necessity  for,  and  origin  of  the 

jurisdiction  of  the  chancellor. 

543.  Infant  is  made  a  ward  of  conrt. 

544.  To  be  made  a  ward  of  court  the 

infant  must  have  property. 

545.  Proceedings  maj'  be  by  petition 

as  well  as  by  bill. 
Appointment    and    removal    of 

guardians;  custody  of  infants. 
Guardianship    a    father's    cUihi, 

not  a  privilege. 


54G. 


547. 


548. 
549. 
550. 
551. 


.55:]. 

554. 

555. 


Education   of  the  ward. 

Management  of  his  estate. 

Marriage  of  the  ward. 

Nature  and  origin  of  the  juris- 
diction of  the  chancellor  over 
lunatics  and  idiots. 

Statute  of  Edward  II. 

Subject  generally  regulated  by 
statute  in  the  United  States. 

Method  of  procedure  in  lunacy. 

Appointment  and  powers  of 
committee. 


CHAPTER  VIII. 


DISCOVEKY, 


556.  Defects   in   common  law   as   to 

discovery;  statutory  changes. 

557.  Origin  and  nature  of  bills  of  dis- 

covery. 

558.  Subject  not  of  as  much  impor- 

tance as  formerly. 

559.  Discovery    must    be    in    aid    of 

legal  proceedings. 
500.  General  right  of  comi)lainant  in 

bills   of   discovery. 
561.   Rules  for  protection  of  defend- 


ant; need  not  discover  his  owa 
title,  nor  evidence  thereof. 

562.  Need   not   criminate   himself. 

563.  Confidential  commimications  as 

to  litigation. 

501.  State  secrets. 

5(55.  In  bills  of  discoverj^  courts  will 
go  on  and  afl'ord  relief. 

500.   Production    of   documents. 

507.  Commissions  to  examine  wit- 
nesses abroad;  to  take  testi- 
mony de  bene  esse. 


CHAPTER  IX. 

BILLS    QUIA    TIMET ;     RECEIVERS  ;     WRITS    OF    NE    EXEAT ;     AND    OF 

SDPPLICAVIT. 


568.  Bills  Quia  Timet;  their  general 

nature.  • 

569.  Examples. 

570.  Personal    property    limited    for 

life    with    remainders   over. 

571.  Courts  of  equity  will  not  enter- 


tain   bills    solely    to    declare 
rights. 

572.  Will    not    interfere    in    certain 

cases  of  covenants. 

573.  Bills   to   perpetuate   testimony. 

574.  Bills  to  establi.sh  wills. 


XXVI 


COXTEXTS. 


575.  Bills   to   remove   a   cloud   from 

title. 

576.  Receivers;  general  nature  of  the 

jurisdiction. 

577.  Appointment  a  matter  of  discre- 

tion ;  rules  under  which  the  di.s- 
cretion  is  exercised. 


578.  Cases  in  whicli  a  receiver  will  be 

appointed. 

579.  Effect  of  appointment. 

580.  Powers  and  duties  of  a  receiver. 

581.  Writs  of   .Ve   Exeat. 

582.  Writs  of  Supplicavil. 

583.  Progressive  capacity  of  Equity 

Jurisprudence. 


TABLE  OF  CASES. 


[The  references  are  to  the  pages.] 


A. 

Adams  v.  Dixon 

735 

736 

Aaron's  Reefs  v.  Twiss 

329 

V.  Edgerton 

389 

Abbey  v.  Dewey 

3.35 

V.  Mackey 

17G 

Al)bott's  Appeal 

71G 

V.  Murphy 

54 

7\l)l)()tl  V.  James 

555 

V.  Shewalter 

715 

V.  Moklestad 

535 

V.  Soule 

322 

V.  Rubber  Company 

225 

Aday  v.  Echols 

552, 

683 

V.  Wilbur 

438 

Addams  v.  Tutton 

711 

Abdy,  In  re 

189 

Adderley  r.  Dixon 

541, 

548 

Aberaman  Iron  Works  v 

Wickens 

Addison  v.  Bowie 

460 

523,  683 
Aberdeen  Town  Council  v.  Aber- 
deen University  223 
Abernethy  r.  Hutchinson               648 
Abraham  v.  Newcombe  184 
V.  Ordway  61 
Abrams  v.  Seale                               439 
Academy  r.  Clemens                          207 
Aclieson  v.  Miller                              488 
Acker  v.  Pha?nix                                113 
V.  Priest                                     137 
Ackerman's  Appeal                          497 
Ackerman  v.  Emott                          221 
V.  Thummel                   606 
Ackroyd  v.  Smithson              152,  470, 

471,472 
Acme  Brewing  Co.  v.  Fletcher  604 
Acton  V.  Dooley  437 

V.  Woodgate  120 

Adair  v.  Winchester  276 

Adam  v.  Newbigging  680 

Adams  and  the  Kensington  Ves- 
try, In  re  125,  126,  128 
Adams's  Estate  226 
Adams  v.  Adams            115,  116,  245, 

312,  787 
V.  Barrett  346 

V.  Brackett  513 


Addlestone  Linoleum  Co.,  In  re     680 
Addyston   Pipe  &  Steel  Co.  v. 

United  States  356 

Adlington  v.  Cann  112 

Adlum  V.  Yard  461 

Adnam  v.  Cole  195 

Adsit  V.  Adsit  455 

Adye  v.  Feuilleteau  220 

V.  Smith  196 

^tna  Ins.  Co.  v.  Parker  491 

V.  Wires  498 

Life  Ins.  Co.  v.  Middleport     498 

Affleck  v.  Affleck  305 

Aflalo  V.  Fourdrinier  498 

Agar  V.  Fairfax        694,  697,  699,  705 

V.  Murray  730 

Agens  V.  Agens  61 

Agnew  V.  Bell  482,  491 

r.  Fetterman  741 

r.  Southern  Ave.  Land  Co.  552 

Agra  Bank  v.  Barry  426 

Agra  &  Masterman's  Bank,  In  re 

273,  451 
Agricultural  Bank  v.  Fallen  489,  502 
Aguilar  v.  Aguilar  486 

Ahearne  v.  Hogan  373 

Ahern  v.  McCarthy  245 

Ah  Foe  V.  Bennett  370 


XXVll 


XXVUl 


TABLE    OF    OASEFi. 


[The  references  are  to  the  pages.] 


Ahl's  Appeal                        5 

2,53 

,  230 

Alexander  v.  Pendleton 

776 

Ahrend  v.  Odiome 

519 

V.  Warram 

144 

Ahrens  v.  Jones 

313 

,337 

Aleyn  v.  Belchier 

398 

Aiello  V.  Montecalfo 

658 

Allan  r.  Gott 

513 

Aigeltinger  v.  Einstein 

732 

AUcard  v.  Skinner 

364 

373 

Aiiien  v.  Gale 

488 

V.  Walker             29S 

!,  294 

295 

V.  Steiner 

721 

Allegheny  Base  Ball  Club  v. 

Ben- 

V.  Suttle 

778 

nett 

662 

Aikin  v.  Smith 

89 

AUegretti  v.  AUegretti 

655 

Aiman  v.  Stout 

359 

Allen,  Ex  parte 

359 

Ainslie  v.  Boynton 

481 

Allen,  In  re 

426 

Ainsworth  i'.  Club 

620 

Allen's  Estate 

563 

V.  Walmsley 

650 

Allen  V.  Allen 

228 

Akerly  v.  Vilas 

315 

V.  Anthony 

420 

Akin  V.  Jones 

268 

V.  Barkley 

692 

Alabama  Coal  Co.  v.  Shackelford 

781 

V.  Berry 

65 

A.  Landreth  Co.  v.  Schevenel 

327 

V.  Board  of  Freeholders 

040 

Alaska  Pacific  Coast  Co.  v.  Brow 

n  24 

V.  Boomer 

452 

Albany  Insurance  Co.  v.  Bay 

174 

V.  Center  Valley  Co. 

720 

Albea  ?'.  GrifRn 

.561 

V.  Chambers 

109 

561 

Albergottie  v.  Chaplin 

695 

V.  Clark 

489 

Albert  v.  The  City  of  Baltimore 

411 

V.  Dermott 

493 

V.  The  Savings  Bank 

411 

V.  Elder 

51 

294 

Albert  (Prince)  r.  Strange 

647 

V.  Everley 

234 

Albertson  v.  Laughlin 

64 

V.  Flood 

629 

Albion  State  Bank  v.  Knicker- 

V. Frawley 

328 

bocker 

496 

499 

V.  Gillette 

160 

Albiston's  Estate 

466 

V.  Hart 

330 

Albright  v.  Herzog 

731 

V.  Henn 

308 

V.  Oyster 

585 

V.  Imlett 

82 

Alderson,  Ex  parte 

266 

1'.  Jackson 

350 

Aldine  Mfg.  Co.  v.  Phillips 

530 

V.  Lathrop 

250 

Aldous  V.  Olverson 

383 

V.  M'Pherson          31f 

1,  312 

313 

Aldred's  Case 

636 

637 

V.  Montgomery 

731 

Aldrich  v.  Aldrich 

125 

12S 

V.  Moore 

563 

/'.  Cooper   489,  501, 

502, 

503, 

V.  Patrick 

253 

504,  505,  506,  511 

512 

514 

V.  Perrine 

503 

609 

V.  Hapgood 

491 

V.  Pullman  Palace  Car  Co. 

605 

?\  Hassinger 

338 

V.  Seckham 

420 

Aldridge  v.  Dunn 

523 

V.  Stevens       197,  207 

,210 

212 

V.  Thompson 

601 

V.  Waldo 

777 

Alexander's  Appeal 

549 

i>.  Wells 

721 

Alexander's  Estate 

592 

V.  Wood 

481 

Alexander  v.  Alexander 

561 

Allender  v.   Evans-Smith 

Drug 

V.  Crosbie 

676 

Co. 

516 

V.  Ellison 

438 

Allerton  r.  Belden 

659 

V.  Fisher 

616 

Alliance  Bank,  Ex  parfp 

517 

V.  Henderson 

604 

AUiance  Trust  Co.  v.  Multnomah 

V.  Leakin 

736 

Co. 

605 

TABLE    OF    CASES. 


XXIX 


[The  references  are  to  the  pages.] 


Allin  V.  Millison 

323 

Ames  7). 

Miller 

252,  253 

Allis's  Estate 

220 

V. 

Witbeck 

503 

AUis  V.  Billings 

359 

Amherst  Coll.  v.  Ritch     313 

329,  337 

I'.  Hall 

588 

Ammon' 

s  Appeal 

387,  389 

Allison's  Appeal 

615 

.\moskea 

g  Mfg.  Co.  V.  Spear 

654 

Allison's  &  Evans's  Appeal     622 

684 

Amphlett  v.  Parke 

472 

Allison  V.  Cocke's  Ex'rs 

287 

Ancaster 

(Duke  of)  V.  Mayer 

487, 

V.  Herring 

690 

511, 

512,  513 

V.  Wilson 

463 

Anderson's  Appeal 

459 

AUore  v.  Jewell                 317,  360 

405 

Anderson's  Case 

379 

Allsopp  V.  Wheatcroft 

353 

Anderson  v.  Abbott 

452 

Allyn  t'.  Allyn                   537,541, 

542 

V.  Anderson 

542,  715 

V.  Schultz 

439 

V.  Arrington 

52 

Almond  v.  Almond 

186 

V.  Brinser 

421 

Almony  v.  Hicks                      777 

778 

V.  Burwell 

316 

Almy  V.  Jones                   193,  198, 

213 

V.  Chick 

562 

V.  Reed 

280 

V.  Creston  Land  Co.       321 

Alsop  r\  Eckles 

776 

V.  Greble 

488 

Alspaugh  V.  Adams 

147 

V.  Harvey 

619,  622 

Alston,  Ex  parte 

529 

V.  Kemper 

119 

Alsworth  V.  Cordtz 

143 

V.  Lemon 

157 

Amanda  G.  M.  Co.  ?-.  People's  M. 

V.  McCloud-Love  Live 

Co. 

544 

Stock  Co. 

503 

Ambrose  v.  .\mbrose 

107 

V.  Neff 

249 

Ambrouse  v.  Keller                  536 

547 

V.  Noble 

590,  690 

American  Bible     Soc.     v.     Am. 

V.  Olsen 

542 

Tract  Soc. 

196 

V.  Phlegar 

440 

Base  Ball  Co.  v.  Har- 

V. Schneider 

562 

per 

665 

V.  U.  S. 

356 

Bonding    Co.    v.    Me- 

V. Walker 

447 

chanics'  Bank 

491 

V.  Wallace  Co. 

535 

Bridge  Co.  ?;.  Heidel- 

Anding  i 

.  Davis 

106 

bach 

247 

Andrews 

,  In  re 

123 

Clay  Mfg.  Co.  v.  Am. 

Andrews 

,  Matter  of 

750 

Clay  Mfg.  Co. 

653 

Andrews 

V.  Andrews 

212,  298, 

Freehold,   etc.,  Co.  v. 

665,  675 

Jefferson 

67 

V.  Bell 

549 

Mfg.  Co.  V.  O'Hara 

305 

V.  Brown           566, 

571,  683 

Nat.   Bank  v.   North- 

V. Hobson 

115 

western  Life  Ins.  Co. 

782 

V.  Jones 

182,  368 

Pin  Co.  V.  Wright 

268 

V.  Kingsbury 

353 

School,    etc.,    r.    Mc- 

V.  McCoy 

273 

Annulty 

53 

V.  Mockford 

324 

Smelting  Co.   v.  God- 

V. Par  tee 

383 

frey 

636 

V.  Salt 

754 

Sugar  Refining  Co.  r. 

V.  Solomon 

766 

Fancher               149 

311 

.\ndries  i 

;.  Detroit  Ry.  Co. 

708 

Amerman  ;;.  Deane 

663 

Anewalt 

s  Appeal 

465 

Ames  (;.  Ames 

695 

Augel  (.'. 

Haddeu 

601 

XXX 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Angell  V.  Angell 

Angle  V.  Chicago,  etc.,  Ry. 

Anglo-California  Bank  v.  Cerf 

Angus  V.  Clifford  318, 

Ankeney  v.  Hannon  172, 

Ankeny  v.  Moffett 

Anketel  v.  Converse  519, 

Ann  Arbor  Railroad  Case 

Annan  v.  Merritt 

Annapolis,    etc.,    R.    R.    Co.    v. 

Gantt 
Annis  v.  Butterfield 
Anon\Tnous  715,  752, 

Anthe  r.  Heide 
Anthes  v.  Schroeder 
Anthony  v.  Rogers 

Shoe  Co.  V.  West  Jersey 
R.  R.  Co. 
Apgar  V.  Hiler 
Apple  V.  Allen 
Appleby  v.  Appleby 
Appleton  V.  Rowley 
Arbuckle  v.  Blackburn 
Arbuthnot  v.  Norton 
Archer's  Case  376, 

Archer  v.  Hudson  368, 

V.  Rorke 
Arden  i\  Patterson 
Ardesco  Oil  Co.  v.  N.  A.  Mining 

Co. 
Argucllo  )'.  Edinger 
Arkenden  i'.  Starkey 
Arlin  v.  Brown 

Arhngton  State  Bank  (,'.  Paulsen 
Armington  v.  Palmer 
Annistead  r.  Ilartt 
Armitage  v.  Pulver 

V.  Wadsworth 
Armstrong  v.  Cilchrist  52, 

V.  Morrill 

V.  Owens 

V.  Ross  175, 

V.  Warner 
Arna's  Appeal 
Amdt  V.  Griggs 

Arnisou  r.  Smith  324, 

Arnold,  In  re 
Arnold  v.  Gilbert 

V.  Hagerman 


337 
244 
331 
175 

488 
520 
577 
561 

234 
263 
781 
138 
503 
247 

641 
485 
179 
351 
99 
591 
264 
379 
369 
167 
263 

486 
561 

13 
519 
496 
658 

Si) 
484 
278 
690 
217 
245 
518 
481 
502 

74 
335 
514 
463 
720 


Arnold  r.  Klepper  633 

Arnot  V.  Pittston  &  Elmira  Coal 

Co.  354, 355 

Arques  v.  Wasson  261 

Arthur  v.  Oakes  626,  628,  665 

Artman  v.  Giles  584 

Ash's  Appeal  90 

Ashburton  v.  Ashburton  755 

Ashby  r.  Palmer  468,  476 

Ashcraft  v.  Little  167,  168 

Ashe  V.  Johnson  539,  540 

Asher  v.  Pendleton  283 

Asheville  St.  Ry.  v.  Asheville  661 
Ashhurst's  Appeal  90,  92,102,  404 
Ashhurst  v.  Given  95,  101 

Ashton's  .\ppeal  415 

Ashton  V.  Thompson  363 

Ashuelot  R.  Co.  v.  Elliot  155 

Ashworth  v.  Munn  513 

Asia  ('.  Hiser  570 

Aspden  v.  Seddon  53 

Aspinwall  v.  Aspinwall  190 

Astel  V.  Causton  12,  580 

Astor  ('.  Wells  418,  425 

Astreen  v.  Flanagan  144 

Asylum  v.  Lefebre  196,  212 

Atchcson  V.  Mallon  326 

Atchison  Ry.  Co.  v.  Spaulding  622 
Atherton  v.  Roche  292 

Athey  v.  Knotts  382 

Atkins  V.  Atkins  116 

V.  Fletcher  627,  628 

V.  Kron  100 

Atkinson  v.  .\llen  344 

V.  Doherty  669 

V.  Marks  601 

V.  Plum  446 

V.  Ward  146,  148 

.\tlanta  r.  Gate  City  Gas  Co.  603 

Atlanta  Trust  &  Bk.  Co.  (;.  Nelms  292 
Atlantic  Delaine  Co.  v.  James       681 
y;.  Tredrick  583 
Att.-Gen.  v.  American  Life  Ins. 

Co.  268 

V.  Andrews  198 

V.  Baliol  College      202,  204 
V.  Blizard  196 

V.  Borough  of  Birming- 
ham 574 


TABLE    OF    CASES. 


XXXI 


[The  references  are  to  the  pages.] 


.-Gen.  V.  Bowyer 

198 

Att.-Gen.  v.  Wallace 

199 

V.  Bradford  Canal 

632 

V.  Wax  Chandlers 

'  Co.  211 

V.  Briant 

767 

V.  William  and  Mary's 

V.  Briggs 

202 

College 

195,  199 

V.  Brunning                ^ 

464 

Attwood  V.  Banks 

603 

V.  Central  Railroad  of 

V.  Coe 

765 

New  Jersey  (The) 

V.  Small 

334 

575,  577 

667 

Atwater  v.  Castner 

654 

V.  Clarenaon 

55 

?'.  Russell 

209 

V.  Clark 

192 

.\twell  ('.  .Atwell 

466 

V.  Cole 

632 

Atwood  V.  Vincent 

493 

V.  Craven 

204 

Aubin  ('.  Holt 

712 

V.  Crofts 

236 

Audenreid  r.  Phila.  &  Reac 

.  R. 

V.  Dean  of  Windsor 

211 

Co. 

577 

V.  Doughty 

636 

Augusta  Laundry  Co.  v.  Debow     284 

V.  Gibson 

204 

Aull  )'.  St.  Louis  Trust  Co. 

736 

V.  Gladstone 

199 

Aultman   v.   Bishop 

492,  498 

V.  Glasgow  College  202 

204 

.\ultman  &  Co.  v.  Weir 

384 

V.  Guise                    202 

204 

Austen  v.  Halsey 

522 

V.  Haberdashers'   Co. 

195 

V.  Taylor 

89,96 

V.  Hall 

192 

Austin  ('.  Austin 

754 

V.  Heelis                   195 

200 

V.  Converse 

639 

V.  Hicks 

204 

V.  Mead 

122,  123 

V.  Ironmongers'  Co. 

V.  Minor 

778 

196,  202, 

204 

V.  Shaw 

111 

V.  Jacobs  Smith      384 

396 

V.  Southern  B.  &  L.  Ass'n  421 

V.  Kell 

196 

Austria  (Emperor  of)  v.  Day 

669 

V.  Manchester 

635 

Auter  V.  Miller 

544 

V.  Marquis  of  Ailes- 

.\veling  V.  Knipe 

138 

feury 

759 

Averill  v.  Loucks 

723 

V.  Matthews 

196 

Averitt  v.  Elliot 

223 

V.  Merrimack  Mfg.  Co. 

111 

Avery  v.  Popper  &  Bro. 

265 

V.  Metropolitan  Board 

V.  Ryan 

540 

of  Works 

578 

V.  Stewart 

135 

V.  Mid.  Kent.  Ry.  Co. 

576 

Avon,  etc.,  Imp.  Co.  v.  Thompson  544 

V.  Moore's  Executors 

207 

Aycinena  v.  Peries 

56 

V.  Oakaver 

195 

.\ydelott  I'.  Breeding 

221 

V.  Old  South  Society 

196 

Ayer  v.  Ayer 

166 

V.  Paterson              593, 

626 

Ayers  v.  Wolcott 

386 

V.  Pearson 

195 

Ayerst  v.  Jenkins 

404 

V.  Railroad  Companies 

667 

Aylesford  (Earl  of)  /'.  Morris 

341, 

V.  Ruper 

195 

342, 

343,  344 

V.  Sands                        82,  99 

Aymar  v.  Roff 

749 

V.  Sheffield  Gas  Co. 

669 

Aynesworth  v.  Haldeman 

111 

V.  Smith  (Jacobs)  384, 

396 

Aynsley  v.  Glover 

636 

V.  Soule 

209 

.Aynsly  v.  Reed 

236 

V.  Stephens              1S4, 

708 

Ayres  v.  Husted 

504 

V.  Stepney 

199 

V.  Waite 

235 

V.  Utica  Ins.  Co. 

640 

V.  Wattson 

448, 529 

XXXll 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


B. 


Baab  v.  Houser 

676 

Babb  V.  Reed 

195 

Babcock  v.  Case 

332 

V.  Day 

680 

I'.  Emrick 

549 

V.  Lisk 

423 

V.  WjTnan 

245 

Backhaus  v.  Backhaus 

93 

Backhouse  c.  Patton 

741 

Backler  v.  Farrow 

698 

Backus's  Appeal 

.548,  549 

Bacon's  Appeal  9U,  91,  92,  94,  96,  777 

Bacon  v.  Bronson  311,  314 

V.  Cosby  455 

V.  Ransom  129 

('.  Taylor  93 

Bacot  V.  Varnado  262 

Badeley    v.   Consolidated    Bank 

4.30.  486 
Baden  v.  Countess  of  Pembroke 

536 
Badger  v.  Badger  61,  315 

Badgett  v.  Frick  681 

Badgley  v.  Bruce  701,  705 

Baer  v.  Ballingall  496 

V.  English  268 

Baggarly  v.  Gaither  412 

Baglan  Hall  Colliery  Co.,  In  re       387 
Bagnall  v.  Carlton  375 

Bagshaw  v.  Seymour  324 

V.  Spencer  96 

Bagster  v.  Fackerell  471 

Bahia  and  San  Francisco  Ry., 

In  re  446 

Bailey  v.  .Vllegheny  Nat.  Bank 

475,  476 
V.  Bailey  495 

V.  Carter  235 

V.  Coal  Co.  377 

V.  Galpin  418 

V.  Master  Plumbers  354 

V.  Pearson  176 

V.  "Pittsburgh  Coal  R.  R. 

Co.  733 

V.  Richardson  420 

V.  Ryder  538 

V.  Sisson  692,  695 

V.  Tillinghast  596 


Bailey     Wring.     Mach.    Co.    v. 

Adams  644 

Baillie  v.  Baillie  603 

Baily  v.  Brownfield  493,  497 

V.  Hornthal  571 

Bair&  Shenk's  Appeal  506 

Baird  v.  Baird  428 

V.  Howard  317 

V.  Stearne  397 

Baker's  Appeal  161,  223 

Estate  101 

Baker  v.  Allison  562 

V.  Backus  779 

V.  Baker  126,  292 

V.  Biddle  692 

V.  Bradley  368 

V.  Cummings  61 

V.  Edwards  496 

V.  Fleming  519 

V.  Gray  249 

V.  Johnston  447 

V.  Leathers  144 

7'.  Lever  679 

('.  Monk  359 

V.  Morgans  586 

V.  Pyatt  300 

V.  Sebright  618 

V.  Vining  138,  142 

V.  White  347 

V.  Whiting  158 

V.  Williamson  17,  95 

Bakewell  v.  Keller  730 

Balbec  v.  Donaldson  141 

Balch  V.  Beach  607 

V.  Chaffee  250 

Bald  Eagle  Valley  R.  R.  Co.  v. 

Nittany  Valley  R.  R.  Co.  554,  663 

Baldock  v.  Johnson  369 

Baldrige  v.  Coffey  755 

Balduff  r.  Griswold  234 

Baldwin  v.  Baldwin  562 

V.  Campfield      141,  143,  154 

V.  Heil  384 

V.  Johnson  147 

V.  Kerlin  552 

V.  Rochford  344 

V.  Salter  557 

V.  Van  Vorst   ,  286 

Daldy  v.  Brady              '  741 


TABLE    OF    CASES. 


XXXIU 


[The  references  are  to  the  pages.] 


Balen  v.  Ins.  Co. 
Bales  V.  Perry 
Balis  V.  Hunt 
Ball  V.  Ball 

V.  Montgomery 

V.  Oliver 

V.  Ray 

V.  Setzer 
Ballance  v.  Underhill 
Ballard  v.  Ballard 
V.  Jones 
V.  Taylor 
Ballentine  v.  Harrison 

V.  White 
Ballin  v.  Dillaye 
Ballinger  v.  Edwards 
Ballou  c.  Slicrwood 
Balsh  V.  Hj'ham 
Baltimore  v.  Porter 


301 
440, 445 
296 
752 
186 
781 
638 
503 
290 
536 
236 
167 
621 
245 
174,  175 
344 
559 
225 
604 


Baltimore  Belt  R.  Co.  v.  Lee  620 

Baltimore    Humane    Society    v. 

Pierce  551 

Baltimore  Life  Ins.  Co.  v.  Gleis- 

ner  670 

Baltimore  (Mayor  of)  v.  Appold      620 
V.  Williams  117 
Baltimore  Sugar  Refining  Co.  v. 

Campbell  310 

Bamman  v.  Binzen  552 

Bancroft  v.  Bancroft  378 

V.  Company  356 

V.  Consen  147,  424 

V.  Russell  152 

Bank  v.  Adrian  65,  390 

V.  Bank  148,  732 

V.  Carrolton  Railroad  725 

V.  Dubuque  223 

V.  Durfey  721 

V.  Fargason  721 

V.  Fletcher  451 

V.  Fordyce  273 

V.  Holland  117 

V.  Hunton  497 

V.  James  177 

V.  Kern  731,  768 

V.  Lorwein  498 

1'.  Opera  House  Co.  493 

V.  Prager  326 

V.  Read  385 


Bank  v.  Rose  221 

V.  Tobacco  Co.  384 

V.  Trebein  Co.  383,  387 

V.  Wallace  238 

of  Columbia  v.  Hagner  567 

of  Commerce's  Appeal  250,  271 
of  Commerce  v.  First  Nat. 

Bank  40,  502,  503,  504 

of  Hindustan,  In  re  518 

of  Huntingdon  v.  Simms      503 
of  Ipswich  V.  Brock  496 

of  Ireland  v.  Perry  517 

of  Louisville  v.  Hall  718 

of  Macon  v.  Bartlett  403 

of  Mendocino  v.  Baker         422 
of  Mount  Joy  v.  Gish  268 

of  Muskingum  v.  Carpen- 
ter 525 
of  Overton  v.  Thompson  419 
of  Pennsylvania  v.  Potius  485 
of  United  States  v.  Beverly  513 
of  United  States  v.  Biddle 

316, 688 
of  United  States  v.  Carring- 

ton  135,  141 

of  United  States  v.  Daniel     297 
of  United  States  v.  Hous- 

man  154 

of  United  States  v.  Huth       207 
of  United  States  v.  Win- 
ston's Executors  496 
of  Utica  V.  Finch  250 
of  Westminster  v.  Whyte     677 
Commissioners  v.  Security 
Trust  Co.                     150,  506 
Bankhead  v.  Alloway     330,  331,  691 
Banks  v.  Evans                                 681 
V.  Gibson                               650 
Banner  v.  Rosser                            339 
Banning  v.  Sabin                              243 
Baptist  Assoc,  v.  Hart's  Execu- 
tors                   192,  206,  216 
Church  V.  Jones                   667 
Church  (Trustees  of  the) 
V.  Hart's  Executors       193 
V.  Scannel                         668 
Barbee  v.  Shannon                             620 
Barber,  Ex  parte                               259 
V.  Crowell                            238 


XXXIV 


TABLF]    OF   CASES. 


[The  references  are  to  the  pages.] 


Barber  v.   International  Co.   of 

Mexico  73.3,  782 

Barbour  v.  Barbour  189 

Barclay  v.  Andrew  222 

Bardeleben  v.  Bessemer  Land  Co.  373 

Bard  well  v.  Perry  721 

Barefoot  v.  Fry  597 

Barfield  v.  Nicholson  662 

Bargent  v.  Thompson  287 

Baring  v.  Dix  714 

V.  Nash  692 

Barker,  Matter  of  756 

Barker  v.  Barker  228,  374,  397 

V.  Binninger  448 

V.  Cox  566 

V.  Elkins  587 

V.    Montana    Gold    Mine 

Co.  338,  373 

V.  Vansommer  345 

Barkley  v.  Donnelly  192,  197 

V.  Lane  111 

Barksdale  v.  Finney  223 

Barkworth  r.  Palmer  383 

Barnard  v.  Campbell  436 

V.  Ford  184 

V.  Gantz  363 

V.  Jennison  248 

V.  Jewett  140 

V.  Lee  568,  569 

(;.  No.  &Wor.  R.R.259,  261 

Barnes  ??.  Black  385 

V.  Jones  782 

V.  Starr  64,  315 

V.  Taylor  316 

V.  Typographical  Union     628 

V.  Union  Pac.  Ry.  Co.         330 

r.  Wood  537 

Barnet  v.  Dougherty  326 

V.  Turnpike  Co.  279 

Barnett's  Appeal  90,  91,  92,  94 

Barnet  t  ().  Barnett  64,=  300 

Barnewell  i^.  Cawdor  512 

Barney  v.  Grover  273 

V.  Saunders  220,  222 

Barnum  v.  Le  Master  166 

Barny  v.  Beak  345 

Baron  v.  Korn  630,  634 

De  Worms  v.  Miellier  586 

Barr  v.  Essex  Trades  Council        628 


Barr  v.  Hatch  303 
V.  Pittsburgh  Glass  Co.  373 
V.  Weld  212 
Barren  v.  Joy  107,  108 
Barrett  Chem.  Co.  v.  Stem  654 
Barrett  v.  Blagrave  660 
V.  Fish  610,  648 
V.  Geisinger  544,  545, 
546,  547 
V.  Hinckley  232 
V.  Mt.  Greenwood  Ceme- 
tery Ass'n  (i:; ) 
Barrier  v.  Kelly  452,  458 
BarroU  v.  Forman  227 
Barron  v.  Alexander  328 
V.  Barron  135,  147 
166,  182,  190 
V.  Whiteside  247 
Barrow  i'.  Barrow  390,  460 
V.  Isaacs  302 
V.  Rhinelander   345,  373,  691 
V.  Wadkin  100 
Barr's  Trusts,  7n  re  271 
Barrs  V.  Fewkes  151,472 
Barry  v.  Abbott  729 
r.  Hamburg-Bremen  Fire 

Ins.  Co.  234 
V.  Hill  337 
('.  Ranson  485 
B:utli  V.  Deuel  52,  301 
Bartle  r.  Nutt  488 
Bartlet  v.  King  199,  202 
Bartlett,  Petitioner  200 
V.  Pickersgill  137,  138 
Barto's  Appeal  382 
Bartol's  Estate  218 
Barton's  Appeal  219 
Barton  v.  Barbour  17 
V.  Dunlap  562 
V.  Long  54 
i).  Mayers  297 
V.  Ry.  Co.  541 
Barton  Nat.  Bank  v.  Atkins  734 
Bascom  v.  Albertson  206,  212 
Basingstoke    (Mayor   of)    v.  Bol- 
ton 708 
Basket  v.  Hassell  123 
V.  Moss  357 
Baskins  v.  Giles  166 


TABLE    OF    CASES. 


XXXV 


[The  references  are  to  the  pages.] 


Basset  v.  Nosworthy 

63, 

407, 

Beall  r.  Stokes 

758 

410,  412,  414 

415 

,416 

V.  White 

259 

Bassett  v.  St.  Albans  Co. 

731 

Beals  V.  Cone 

446 

Basye  v.  Basye 

321 

V.  See 

359 

Batchelder  v.  Bank 

411 

Beans  v.  Bullitt 

269 

V.  Sargent 

175 

Bear  Track  Min.  Co. 

V.  Clark 

547 

Batchellor  v.  Lawrence 

\ 

483 

V.  Koenigstein 

135 

Bate,  In  re 

511 

Beardslej^  v.  Ivnight 

307 

Bateman  v.  Fargason 

66 

Beare  v.  Wright 

323 

Bates  Mach.  Co.  v.  Bates 

548 

Beasley  v.  AUyn 

540 

Bates  V.  City  of  Hastings 

607 

V.  Bray 

383 

,384 

V.  Conrow 

235 

V.  Texas  &  Pac.  Ry.  Co. 

664 

V.  Johnson 

412 

Beatty's  Estate 

227 

V.  Norcross 

426 

Beatty  7;.  Byers 

476 

V.  Mayor 

607 

V.  Clark 

305 

Bath  (Earl  of)  v.  Sherwin 

597 

Beauchamp  v.  Winn 

295 

Bath  Savings  Institution  v.  Fogg 

114 

Beauclerk  v.  Mead 

474 

Batstone  v.  Salter 

144 

Beaufort  (Duke  of)  v. 

Berty  753 

,781 

Battalion  West.  Rifles  v.  Swan 

540 

V. 

Collier  167 

,179 

Battery  Park  Bk.  v.  Bank 

440 

V. 

Glynn 

590 

Bauer  v.  Bauer 

368 

V. 

Neeld 

302 

V.  Lumaghi  Coal  Co. 

545 

Beaumont  v.  Bramley 

299 

Baugher  v.  Merryman 

240 

V.  Carter 

184 

Baughman  v.  Heinselman 

607 

,613 

V.  Meredith 

195 

Baum  V.  Baum 

190 

r.  Oliveira 

200 

V.  Grigsby 

521 

Beaupland  v.  McKeen 

445 

V.  Hartmann 

367 

Beavan  v.  Carpenter 

775 

Baumann  v.  Pinckney 

535 

V.  Lord  Oxford 

270 

Baumgardner  v.  Fowler 

778 

Beaver  v.  Beaver 

114 

,486 

Baxendale  v.  Seale 

302 

Lumber  Co.  v. 

Eccles 

617 

Baxter  v.  Deneen 

65 

Bebee  ?".  Bank  of  New 

York 

273 

V.  Moore 

480 

Beck  V.  Allison 

553 

V.  West 

780 

V.  Burdett 

731 

Bay  V.  Cook 

732 

V.  Graybill 

135 

Bayard  v.  Farmers'  &  Mechan- 

V. Kantorowicz 

377 

ics'  Bank 

411 

V.  Ry.  Teamsters'  Protect- 

V. Hoffman         388, 

729 

730 

ive  Union 

628 

V.  Norris 

421 

V.  Simmons 

682 

Bayley  v.  Boulcott 

111 

Becker's  Estate 

465 

I'.  Greenleaf         519, 

522 

523 

Becker  v.  Chester 

466 

Baylies  v.  Payson 

774 

V.  Howard 

245 

Bayliss  v.  Williams 

366 

V.  McGraw 

707 

Baylor  r.  Fulkerson 

368 

V.  Schwerdtle 

369 

Bayspoole  v.  Collins 

393 

Beckett  r.  Heston 

291 

Beach  v.  Beach 

189 

Beckford  v.  Beckford 

145 

V.  Cooke 

235 

Bcckley  v.  Eckert 

273 

I'.  Shaw 

235 

236 

iic'ddon  r.  Beddon 

545 

Beadel  v.  Perry 

578 

Bedel  r.  Loomis 

339 

Beall  V.  Fox 

208 

Bedell  v.  Hoffman 

597 

XXXVl 


TAHLK    OF    CASES. 


[The  references  are  to  the  pages.] 


Bedford  v.  Bedford  472 

V.  McDonald  721 
Bedford  (Duke  of)  v.  Trustees  of 

British  Museum  662 

Beecher  v.  Beecher  288 

V.  Wilson  &  Co.         137,  138 

Beedle  i;.  Crane  371 

Beegle  v.  Wentz     154,  161,  309,  326, 

337,  401 

Beekman  ;;.  Bonsor  207 

r.  Marsters  629 

Beeman  v.  Cooper  425 

V.  Cowser  184 

V.  Kitzman  701 

Beer  r.  Landman  680 

Beers  v.  Beers  402 

V.  Reynolds  691 

V.  Spooner  269 

Baetson  v.  Stoops  452 

Begole  r.  Hazzard  107 

Beidler  v.  Crane  383 

r.  Douglas  731 

Bein  r.  Heath  582 

Beioley  v.  Carter  555 

Belcher  v.  Arnold  729 

r.  Scruggs  777 

Belchior,  Ex  parte  225 

Belding  v.  Read  262 

Belfast  (Steamboat)  v.  Boon          327 

Belford  v.  Crane  146 

Belknap  v.  Belknap  777 

V.  Schild  613,  643 

Bell's  Appeal  733 

Bell  V.  Fleming  250 

V.  Henderson  334 

V.  Hull  &  Selby  Ry.  Co.  624 

V.  Jasper  484 

V.  Lawrence  296 

V.  Marsh  444 

V.  Mayor  of  New  York  247 

V.  Moore  405 

V.  Pelt  529 

V.  Rawe  13 

V.  Thomp.son  566 

V.  Twilight  417 

Bell  Telcplionp  Co.  v.  Federation 

of  Labor  727 

Bellamy  r.  Dcbenhani  .)57 

V.  Sabine  311,  317,  429 


412, 
106, 


Bellas  V.  McCarty 

Bellasis  v.  Compton 

Belle  V.  Savage 

Belleville  Sav.  Bank  v.  Reis 

Bellows  V.  Stone  559, 

Beloate  v.  Hennessee 

Belshaw  r.  Bush 

Bemis  v.  Call 

V.  Upham 
Benbow  v.  TowTisend  106, 

Bender  r.  Kingman 
Benedict  v.  Ljiich  551, 

V.  Montgomery         188, 
Benevolent  Society  v.  Kelly 
Benford  r.  Sanner 
Benham  c.  Keane 

V.  Rowe 
Benjamin  v.  Elmira  R.  Co. 
Benn  r.  Pritchett 
Bennet  v.  Bennet 

V.  Davis 
Bennett,  Ex  parte 
Bennett  v.  Bank 

i\  Chandler 

V.  Dillingham 

V.  Fulmer  112, 

V.  Gallagher 

V.  Harper 

V.  Hyde 

V.  Ingoldsby 

V.  Judson  321, 

V.  Minott 

?".  Strait 

V.  Union  Bank 

V.  Vade 
Benning  v.  Benning's  Executors 
Bensell  v.  Chancellor 
Benson  v.  Baldwin 

y.  Keller  658, 

V.  Le  Roy  739, 

Bent  )'.  Trimboli 
Bentley  v.  Mackay  296, 

V.  Robson 

V.  Standard  Fire  Ins.  Co. 
Benton  v.  Ger.  Am.  Nat.  Bank 
Berchier,  Ex  parte 
Boresford,  Matter  of 
Bergen  v.  Udall  368, 

Beringer  ;;.  Lutz 


416 
107 

11 
252 
675 
135 
494 
449 
635 
108 
416 
568 
389 
198 
268 
426 
157 
259 
496 
144 
166 
378 
492 
494 
185 
142 
465 

69 
569 
672 
330 
731 
449 
242 
312 
151 
359 
708 
659 
741 
625 
300 
362 
276 
419 
225 
183 
369 
142 


TABLE    OF   CASES. 


XXX  VI I 


[The  references  are  to  the  pages.] 


Berkley  v.  Coal  Co. 

639 

Bidwell  V.  Pittsburgh 

447 

Berkley    (Lord)    v.   ( 

Dountess   of 

Biedeman  v.  Sparks 

475 

Shrewsbury 

12 

Bief  V.  Dyer 

12 

Berlin  Mills  Co.  v.  Poole 

270 

Bienville   Water  Supply  Cc 

».     V. 

Berliner  Gram.  Co.  v 

.  Seaman 

553 

City  of  Mobile 

554 

Bernal  v.  The  Marquis  of  Done- 

Bierbower's Appeal 

56 

690 

gal 

785 

Bierce  r.  The  Red  Bluff  Hotel 

419 

Bernard  v.  Bougard 

138 

Biern  v.  Ray 

563 

V.  Minshull 

131 

Bigelow  V.  Barr 

295 

Bernhart  v.  Greenshields 

418 

V.  Bigelow 

546 

Berry  v.  Church 

503 

V.  Hartford    Bridge 

Co. 

641 

V.  Cross 

715 

V.  Sanford 

761 

V.  Frisbie 

551 

V.  Scott 

496 

V.  Wiedman 

145 

V.  Willson 

236 

V.  Williamson 

96 

r.  Wilson 

311 

V.  Wortham 

552 

Biggs  V.  Colby 

73 

Berryhill's  Appeal 

225 

V.  Utah  Co. 

439 

Berwick  (Mayor  of) 

V.  Murray 

483 

Bigham  v.  Madison 

301 

Besant  v.  Wood 

189 

Bigler  v.  Jack 

242 

Bessey  v.  Windham 

390 

V.  Penna.  Canal  Co. 

581 

Best  V.  Gralapp 

542 

561 

Bignold  V.  Audland 

599 

V.  Hayes 

597 

Bill  V.  Cureton 

119 

,  120 

V.  Smith 

387 

Billinp^  V.  Aspen  Mining  Co. 

296 

V.  Stow 

559 

V.  Sprague 

491 

Bethell  v.  Sharp 

325 

Billingslea  v.  Ward 

109 

Bethlehem  Borough 

V.  Perse ver- 

Billington  v.  Welch 

420 

ance  Fire  Co. 

200 

Binney  i'.  Annan 

542 

Bethune  v.  Wilkins 

621 

Binnie  v.  Walker 

732 

Bettle  V.  Wilson 

190 

Birch  V.  Ellames 

423 

Betts  V.  Betts 

245 

Birchall,  In  re 

217 

V.  Burch 

283 

Bircher  v.  Walther 

150 

V.  Connecticut 

Life     Ins. 

Bird  V.  Hawkins 

288 

Co. 

69 

C.  &  I.  Co.  V.  Humes 

373 

Beverley  v.  Brooke 

779 

781 

Birdsall  v.  Cropsey 

519 

Beverly  v.  Rhodes 

736 

Birdsey  v.  Butterfield 

321 

(Mayor  of)  v 

Atty.-Gen. 

211 

Birdseye  v.  Village  of  Clyde 

604 

Beyer  v.  Nat.  Bldg., 

etc.,  Ass'n 

321 

Birdwell  v.  Cain 

159 

Bezzell  v.  White 

482 

Birkery  Mfg.  Co.  v.  Jones 

542 

Bibb  L.-L.  Co.  v.  Lima  Mach. 

Birkley  v.  Presgrave 

490 

Works 

481 

Birmingham  v.  Forsythe 

482 

Bibby  v.  Thompson 

111 

Birmingham  Ry.  i\  Moran 

625 

Bible  V.  Marshall 

138 

147 

Birmingham  Tract.  Co.   v. 

Bir- 

Bickel's  Appeal 

60,  135 

316 

mingham 

Ry- 

Bickford  v.  Est.  of  Bickford 

145 

&  Elec.  Co 

624 

Bickley  v.  Paul 

731 

V.  Kirwan 

455 

Bicknell  v.  Bicknell 

525 

V.  Sou.  Bell  Tel 

Co. 

668 

Biddle's  Appeal 

129 

Biscoe  V.  Jackson 

204 

Bidfile  V.  Ash 

633 

636 

V.  Thweatt 

199 

LK  Moore 

56 

Bishop  r.  Banks 

637, 

638 

XXXVlll 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Bishop  V.  Breckles 

714 

,715 

Blakemore     v.     Glamorganshire 

V.  Chase 

273 

Canal  Navigation 

574 

V.  Day 

487 

Blanchard  v.  Cooke 

261 

V.  Mahoney 

150 

V.  Detroit,  Lansing  & 

v.  Reed 

300 

Lake    Mich. 

R. 

Bishop  Bailey  Ass'n  i\  Kennedy 

503 

Co. 

553 

Bishop  of  El}^  1'.  Kenrick 

708 

V.  Hill 

650 

Bissel  V.  Warde 

443 

V.  McDougal 

562 

Bissell  V.  Foss 

157 

V.  Tyler 

416 

V.  Peirce 

715 

V.  WiUiamson 

316 

Bittenbender  v.  Sunbury  &  Erie 

Blanchet  v.  Foster 

394 

396 

R.  Co. 

261 

Blandy  i'.  Widmore 

742 

Bitterman  v.  Louisville  &  Nash- 

Blane, Ex  -parte 

148 

ville  R.  R. 

58 

574 

Blaney  v.  Bearce 

234 

Bitting's  Appeal 

630 

Blauvelt  v.  Ackerman    139, 

159 

223 

Bitzer  v.  Bobo 

148 

Bleakley's  Appeal 

498 

Bixby  V.  Eley 

305 

Bleckeley  v.  Branyan 

252 

Black's  Appeal 

720, 

723 

Bleight  r.  The  Bank 

465 

Black  V.  Bohlen 

768 

Blenkinsopp  v.  Blenkinsopp 

382 

V.  Boyd 

689 

Bhght's  Heirs  v.  Banks 

522 

V.  Maddox 

552 

Blight  V.  Schenck 

225 

r.  Phila.  &  Read.  R. 

Co. 

625 

Bliss  V.  American   Bible  Society 

199 

V.  Shreeve 

483 

V.  Anaconda    Copper 

Min. 

Blackburn  v.  Blackburn 

111 

Co. 

576 

V.  Stables 

97 

V.  N.  Y.  Cent.  &  Hud 

.  R. 

Blackett  v.  Bates 

553 

R.  R.  Co. 

317 

V.  Lamb 

457 

459 

V.  Prichard 

61 

Blackmore  v.  Shelby 

367 

V.  Smith 

690 

Blackstock  v.  Robertson 

245 

Bhssett  V.  Daniel 

712 

Blackstone  Bank  v.  Davis 

101 

Block  v.  Crockett 

591 

Blackvvilder  v.  Loveless 

544 

V.  Shaw 

260 

Blackwood     r.     Lond.     Chartd. 

Blodgett  V.  Foster 

689 

Bank  of  Austraha 

63. 

412 

V.  Hildreth 

139 

141 

Blagen  v.  Smith 

637 

Blondell  v.  Consol.  Gas  Co. 

620 

Blain  v.  Chippewa 

55 

Blondheim  v.  Moore 

780 

Blair  v.  Bass 

142 

Blood  I'.  Beal 

607 

V.  Duncan 

209 

V.  La  Serena  Land, 

etc., 

V.  Illinois  Steel  Co. 

732 

Co. 

436 

V.  Reading 

586 

Bloomfield  v.  Stowe-market 

204 

V.  Ward 

489 

Bloomfield  Gravel    Min.    Co 

.      V. 

Blake  v.  Exchange  Ins.  Co. 

439, 

441 

U.S. 

626 

V.  Hey  ward 

412 

State  Bank  v.  Miller 

525 

V.  Langdon 

480 

Blount  I'.  Spratt 

359 

V.  O'Neal 

93 

Blue  V.  Patterson 

312 

V.  State  Savings  Bank 

150 

Blue     Jacket     Copper     Co. 

V 

v.  Traders'  Nat.  Bank 

497 

Scherr 

605 

Blakelcy  v.  Patrick 

257 

Blundell  r.  Brettargh 

544 

Blakely  v.  Sousa 

264, 

652 

Blunt  V.  Patten 

646 

Blakemun  v.  Blakeman 

402 

Blvgli  ('.  Samson 

333, 

680 

TABLE    OF    CASES. 


XXXIX 


[The  references  are  to  the  pages.] 


Blystone  v.  Blystone 

390 

Bonaparte  v.  Cam.  &  Amboy  R. 

Boal  i'.  Morgner 

167 

Co. 

624 

Board  v.  Spangler 

58 

Bond  V.  Bunting 

117, 

121 

of  Commrs.  of  Rush  C 

'O.  V. 

V.  Little 

594 

Dinwiddie 

192 

1'.  Nurse 

82 

of    Echicalion    r.    Di 

pa  r- 

Bonebright  v.  Pease 

54 

quet 

270 

Bonesteel  v.  Sullivan 

390 

V.  Guy,  County  Auditor 

606 

Bonner  v.  Bonner 

184 

of  Montgomery  County  v. 

' 

V.  Great  West.  Ry. 

Co. 

578 

Elston 

67 

Bonney  v.  Seely 

484 

of   Public    Works    ('. 

Co- 

Bonniwell  v.  Madison 

288 

lumbia  College 

735 

BonodjTi  V.  Arundell 

12 

of  Trade  v.  Christie  C 

irain 

Bonsall  v.  Randall 

369 

Co. 

647 

Boogren  v.  St.  Paul  Ry.  Co. 

264 

of  Trustees  v.  Postel 

146 

Booher  v.  Browning 

620 

Boardman  v.  Jackson 

313 

Booker  v.  Booker 

426 

V.  Meriden   Britannia 

V.  Wingo                64 

680 

681 

Co. 

654 

Bookout  V.  Bookout 

397 

Boarman  v.  Catlett 

236 

Boomer  (Township  of)  v.  French 

317 

Bobb  V.  Wolff 

245 

Boone  v.  Boone 

695 

V.  Woodman 

54 

V.  Chiles 

413 

Boddie  v.  Brewing  Co. 

589 

Co.  V.  Burling.  &  Mo. 

Riv. 

Boddy  V.  Henry 

331 

R.  Co. 

60 

Bodine  v.  Glading 

286 

551 

Boos  V.  Ewing 

520 

Bodkin  v.  Arnold 

442 

Booten  v.  Scheffer 

549 

Bodwell  V.  Heaton 

674 

Booth  V.  Baptist  Church 

212 

Boerum  v.  Schenck 

159 

223 

V.  Booth 

227, 

609 

Bogert  V.  Her  tell 

466 

V.  Clark 

779 

Boggs  V.  Anderson 

427 

V.  Lenox 

142 

V.  Chambers 

693 

V.  Wiley 

440 

V.  Vartier 

425, 

427 

Bootle  V.  Blundell 

512 

Bogie  V.  Bogie 

369 

Borah  r.  Archers 

698 

Bogut  V.  Coburn 

236 

Borcherling  r.  Ruckelshaus 

586 

Bohannon  v.  Travis 

188 

Borden  r.  White 

360 

Bohle  V.  Hasselbroch 

148 

Borell  )'.  Dann 

547 

Bohn  V.  Headley 

393 

Borer  v.  Chapman 

741 

Boid  ?'.  Dean 

387 

Borie  v.  Satterthwaite 

536, 

537, 

Boise  V.  Benham 

521 

589 

777 

Bokee  v.  Walker 

319, 

332 

Borley  v.  McDonald 

284 

Boland  v.  O'Neil 

188 

189 

Born  V.  Schrenkeisen 

299, 

675 

V.  Tiernay 

463 

Bosanquett  v.  Dashwood 

346 

Bold  V.  Hutchinson 

98 

675 

Bostock   V.    North    Stafford    R. 

Bolland  v.  O'Neal 

421 

Co. 

632 

Boiling  V.  Boiling 

692 

Boston  V.  Doyle 

216 

BoUo  V.  Navarro 

695 

Boston  Diatite   Co.   v.   Florence 

Bolsa  Land  Co.  f.  Burdick 

622 

Mfg.  Co. 

58 

670 

Bolton  (Duke  of)  r.  Williams 

582 

Iron  Co.  V.  King 

247 

Bolton  V.  Bolton 

695 

Boston  &   Maine   R.   R.   Co.   v. 

Bomer  Bros.  v.  Canady 

552 

554 

Sullivan 

621 

xl 


TAI'.LI'".    OK    CASES. 


[The  references  are  to  the  pages.] 


Nut. 

(ini, 

382,  720, 
138, 

IIG, 


383, 


Boston  it  Montan:i  Con.  (".  &  S. 
Miaiug    Co.     r.    Mon- 
tana   Ore    Purchasing 
Co. 
Bo.st\vick,  //(  re 
Bostwick  r.  Atkins 
Bosworth  ('.  Hopkins 

V.  Jacksonville 
Bank 
Botifeur  r.  Weyniun 
Botsford  V.  Beers 
I".  Burr 
Boughman  v.  Boughman 
Boughton  i\  Boughton 
Boulden  v.  Stilwell 

('.  Wood 
Bouciuet  V.  Heyman 
Bourne  v.  Bourne 

V.  Swan  &  Edgar,  Ltd 
Bourcjuin  v.  Bourquin 
Bouslough  V.  Bouslough 
Boutin  V.  Etsell 
Bouverie  v.  Prentice 
Bowden  r.  Bland 
Bowditch  V.  Andrew 
Bowdi'o  V.  Carter 
Bowe  L\  Bowe 
Bowen  v.  Edwards 

I..  Hall 

V.  Haupt 

V.  Hoskins 

V.  Matheson 

V.  Wolff 
Bower  v.  Bagley 
I^owcrs  V.  Hutchinson 

I'.  Oyster 
Bowes  V.  Seeger 
Bowlby  V.  Thunder 
Bowling  I'.  Bowling 
Bowman  v.  Missionary  Society 

/".  Wathen 
Bowser  v.  Cessna 

V.  Colby 
Boxi;.  Barrett 
Boxheimer  i'.  Cunn 
Boyce  v.  Burchard 

V.  Fisk 

V.  Grundy 

I'.  Kelso  Home 


ISD, 


22 


^i). 


22,  56, 


597 
755 
367 
146 

265 
692 
732 
140 
142 
513 
327 
298 
386 
465 
650 
415 
390 
483 
708 
673 
89 
68 
369 
239 
662 
142 
484 
353 
366 
553 
190 
525 
226 
127 
773 
207 
418 
28 
286 
454 
423 
716 
340 
314 
463 


Boyd,  Ex  parte 
Boyd  V.  Brown 
'/;.  Dui>la]i 
/'.  McDonough 
V.  McLean 
Boykin  r.  Ciples 
('.  Jones 
Boyle  V.  Adams 
r.  Maroney 
r.  Zacharie 
Boylen  r.  Leonard 
Boynton  v.  Boynton 
V.  Hall 
V.  Housler 
V.  Hubbard 


769 

552,  561 
343 
1S2 
135, 141, 142 
166 
428 
326 
729 
21 
258 
460 
633 

326,  337 
341,  343, 

347,  357 
529 
415 

359, 776 


V.  Payrow 

r.  Rees 

Boyse  v.  Rossborough 

Brace  v.  D\ichess  of  Marlborough  250 

Bracebridge  r.  Buckley  287 

Bracken  r.  Miller             414,  418,  419 

Brackett  v.  Sears  250 

Bradficld  r.  Elyton  Land  Co.         321 

V.  Sewall  489 

Bradford  r.  Burgess  252 

r.  Furniture  Co.  :}51,  663 

V.  Greenway  175 

V.  New  York  &  Pa.  T. 

&  T.  Co.  62 

%).  Union  Bank  559 

Banking  Co.  v.  Briggs     250 

Bradish  v.  Gibbs  188 

Bradley's  Case  267 

Bradley  v.  Carritt  241 

V.  Chesebrough  150 

V.  George  489 

V.  Gill  638 

V.  Heyward  547 

i\  Lightcap  234 

r.  Norton  649 

Bradsher  v.  Lea  635 

Brady's  Appeal  359,  550 

Brady  r.  Huber  390 

V.  Waldron  617 

Bragg  V.  Paulk  108 

Braham  v.  Bustard  650 

Brainard  ;>.  Holsaple  681 

Biaithwaitf  r.  Ileimeberry  52 


TABLE    OF   CASES. 


xli 


[The  references  are  to  the  pages.] 


Bramwell  v.  Lacy 

661 

Bridgewater  Mills  v.  Strough 

503 

Brand  v.  Power 

327 

Bridgman  v.  Green                 157 

379 

Brandon  v.  Medley 

296 

Briggs  V.  Law 

664 

('.  Robinson 

101 

V.  Light-boats 

83 

Brandreth  v.  Lance 

646 

iJ.  Penny        112,125,128 

131 

Brandt  v.  Mickle 

167 

V.  Planters'  Bank 

501 

Branham  v.  Record 

335 

V.  Spaulding 

373 

Branningan  v.  Murphy 

192 

Bright  V.  Allan 

634 

Brant  i'.  Brant 

391 

V.  Boyd 

289 

Brantley  v.  West 

143 

V.  Bright 

121 

Brashier  v.  Gratz 

567 

V.  Legerton 

228 

Brass    &    Iron    Works     Co.     i 

J. 

V.  Newland 

56 

Payne 

609 

Briley  v.  Sugg 

493 

Bratton  ^\  Rogers 

421 

Brinkerhoff  o.  Brinkerhoff 

449 

Braun    v.    First    German,    etc.. 

V.  Brown 

731 

Church 

337 

V.  Marvin             251 

503 

Breard  v.  Munger 

552 

V.  Ransom 

64 

Breck  v.  Smith 

785 

Brinkley  v.  Brinkley 

397 

Breckenridge  v.  Brooks 

247 

Bristol  (Town  of)  v.  Bristol  and 

V.  Ormsby 

359 

Warren  Water  Works 

553 

Breckinridge  v.  Taylor  481,  483 

484 

Bristol,  etc.,  Co.  v.  Bristol 

668 

Breden  v.  Gilliland 

511 

Bristor  i'.  Tasker                        91 

119 

Breit  v.  Yeaton 

305 

Bristow  V.  Warde 

458 

Brendle  v.  German  Ref.  Cong. 

200 

V.  Whitmore 

336 

Brennaman  v.  Schell                135 

145 

Britain  v.  Rossiter 

560 

Bresee  v.  Bradfield 

339 

British  Empire  Shipping  Co.  v. 

Bressler  v.  Kent 

174 

Somes                              56, 278 

762 

Breton's  Estate,  In  re 

117 

British  Museum  Case 

662 

Brett  V.  Carter                         259 

,261 

Brittain  v.  Lohr 

384 

V.  Cooney 

336 

Brittin  v.  Partridge 

271 

Brew  V.  Van  Deman 

664 

Britton's  Appeal 

235 

Brewer  v.  Boston  &  W.  R.  Co. 

444 

Britton  v.  Hill 

622 

V.  Fleming 

534 

V.  Lewis 

158 

V.  Harrison 

159 

V.  Royal  Arcanum 

51 

V.  Herbert 

279 

Broad  v.  Selfe 

241 

V.  Hyndman 

236 

Broadway  Nat.  Bank  v.  Wood 

720 

Briant,  In  re 

185 

Broadwell  v.  Broadwell 

294 

Brice  i\  Brice 

3()0 

Brobst   r.  Brock 

237 

V.  Stokes                         226 

,227 

Brock  V.  Barnes 

363 

Bridesburg  Mfg.  Co.'s  Appeal 

599 

?.'.  Cook 

502 

Bridgeford  v.  Masonville  Mfg.  Co. 

280 

Brocklesby  t'.  Temperance  Perm. 

Bridgeport  Electric  &  Ice  Co.  v. 

Building  Soc. 

392 

Meader                                      68,  69 

Broddesworth  v.  Coke 

13 

Bridger's  Case 

443 

Broder  v.  Conklin 

Bridger  v.  Bank                        428 

,429 

V.  Saillard             632,  638 

639 

V.  Goldsmith 

441 

Broderick's  Will  (Case  of) 

313 

Bridges  v.  Linder 

243 

Brodie  v.  Barry 

454 

V.  Robinson 

659 

Brogden,  In  re                        218 

229 

V.  Wilkins 

179 

Brogdon  v.  Walker 

359 

Xlll 


TAULK    OF    TASES. 


[The  references  are  to  the  pages.] 


Broken  Bow  (City  of)  v.  Broken 

Bow  Water  Works  Co.  292 

Brolasky  /•.  Ckilly's  Ex'rs  463 

Bromberg  c.  Fidelity  Co.  487 
Bromley  /'.  Holland  .'■)7,  281,  282,  680 

Broiik  ('.  Ililey  065 

V.  State  786 

Bronson  v.  Cahill  551 

Brook  V.  Badley  469 

Brookfield  v.  Williams  698 

Brooklyn    White    Lead  Co.    v. 

Masury  658 

Brooks  V.  Curtis  443 

V.  Fowle  138 

V.  Hatch  257 

V.  Martin  66,  391 

V.  McMeekin  397 

V.  Norcross  644 

V.  Stolley  52 

V.  Wheelock  559,  565 

Broome  v.  Telep.  Co.  578 

Brother  ton  v.  Weathersby  138 

Broun  v.  Kennedy  363 

Brower  v.  Kantner  56,  613 

Brown's  Appeal  586,  633 

Brown  v.  Armistead  292 

V.  Bateman  257,  259 

V.  Bellows  286 

V.Brown  65,112,452, 

460,  496,  550 

V.  Budd  425 

V.  Burbank  366 

V.  Caldwell  455 

V.  Canal  &  Reservoir  Co.     595 

V.  Clifford  244,  245 

V.  Combs  111 

V.  Concord  207 

V.  Condit  207 

V.  County  of  Buena  Vista  404 

V.  Crafts  114 

V.  Cram  234 

V.  Dail  261 

V.  Davis  66,  451 

V.  Desmond  538 

V.  Dysinger  325,  337 

V.  Equitable  Life  Assur. 

Soc.  274 

V.  Fisk  734 

V.  Gaffney  240 


V.  Gilliland 

539 

V.  Oilman 

520 

V.  Griswold 

537 

V.  Hall 

340 

V.  Hendrickson 

480 

V.  Higgs 

132,  133 

V.  Holyoke 

402 

V.  Hurd 

586 

V.  Johnson 

168 

V.  Jones 

150 

V.  Lake  Sup.  Iron  Co.   68,  732 

V.  Leach  238,  334 

V.  Long  731 

V.  Lord  Say's  Widow  12 

V.  Mayor  58,  591 
V.  McDonald        735,  736,  762 

V.  Meeting     St.  Baptist 

Soc.  212 

V.  Miller  476 

V.  Norcross  544 

V.  Norman  311,  404 

V.  Philhps  303 

V.  Pitney  452 

V.  Pocock  132 

V.  Ray  491 

V.  Rice  328 

V.  Ricketts  219,  452 

V.  Runals  529 

V.  Savings  Bank  248 

V.  Simpson  519 
V.  South  Joplin  Lead  Co.     321 

V.  Spohr  108 

V.  Stewart  234,  777 

V.  Tanner  259 

V.  Vandergrift  288 

V.  Vandyke  691 

V.  Van  Winkle  544 

V.  Wabash  Ry.  Co.  74 

V.  Wadsworth  182,  185 

V.  Wales  764 

V.  Ward  62,  675 
V.  Williamson's  Ex'rs         101 

V.  Wright  220 

Brownback  v.  Keister  777 

V.  Ozias  423 

Browne  v.  Niles  638 

V.  Perris  252 
V.  Trustees      of      Bait. 

Church  442 


TABLE    OF    CASES. 


xliii 


[The  references  are  to  the  pages.] 


Brownfield's  Appeal 

372 

Buck  ('.  Smith 

553 

Browning  v.  Lavender 

778 

V.  Swazey 

266 

Brua's  Appeal 

34n 

V.  Ward 

313 

Bruce,  Ex  parte 

524 

Buckers  Irrigation  Co.  v.  Farm- 

Bruce r.  Buixlet 

GS9 

ers'  Ditch  Co. 

17 

V.  Clhikl 

310 

Buckingham  v.  Clark 

338 

V.  Edwards 

500 

V.  Ludlow 

405 

V.  Moon 

542 

V.  Morrison 

224 

V.  Slemp 

145 

Buckland  v.  Pocknell 

521 

7'.  Tilson 

568 

Buckle  V.  Mitchell 

392 

407 

Bruck  IK  Tucker 

550 

Buckley  v.  Corse 

581 

Brudenell  v.  Elwes 

204 

V.  Daley 

235, 

238 

Bruff  V.  Mali 

324 

V.  Duff 

387 

Bruner's  Appeal                222 

,  501 

,  504 

Buck  Mountain  Co.  v.  Lehigh  Co. 

Bruner  v.  Finley 

IGO 

,404 

641 

669 

V.  Meigs 

54 

Buckner  v.  Calcote 

317 

Brunsden  v.  Woolredge 

196 

V.  Chicago,  M.  &  A 

..  Ry. 

Brunson  v.  King 

129 

Co. 

54 

Brusie  v.  dates 

778 

Buel  v.  Miller 

402 

564 

Bruton  v.  Rutland 

695 

Buena  Vista  Co.  v.  Billmyer 

321 

Brutsche  v.  Bowers 

65 

V.  Tuohy 

67 

Bruty  ;;.  Mackey 

197 

Buffalo,    etc.,    R.   Co.    v. 

Lamp 

- 

Bryan  v.  Bigelow 

109 

son 

135 

V.  Bradley 

93 

Buford  V.  McKee 

545 

V.  Bryan 

182 

Building  Ass'n  v.  Blair 

403 

V.  Douds 

137 

V.  Fellers 

503 

V.  Hitchcock 

335 

Bull  V.  Bull                       126,  128 

741 

V.  Long 

586 

V.  Vardy 

133 

V.  Masterson 

296 

Bullard  r.  Chandler 

196 

V.  McNaughton 

137 

Buller  r.  Plunkett 

271 

V.  Milby 

127 

BuUi    Coal    Mining    Co. 

'.    Os- 

Bryant  v.  Peck  &  Co. 

362 

borne 

62 

&     Barningham's 

Con- 

Bullock  r'.  Boyd 

691 

692 

tract,  In  re 

557 

V.  Corry 

76() 

Bryar's  Appeal 

252 

V.  Griffin 

706 

Brydges  v.  Brydges 

18 

BuUowa  V.  Orgo 

524, 

525 

Brymer  v.  Buchanan 

601 

Bulow  V.  Witte 

755 

Bryson  v.  McShane 

563 

Bulows    V.    The    Committee    of 

V.  Peak 

568 

O'Neall 

583 

Buchan  v.  Sumner 

716 

717 

Bumgardner  v.  Leavitt 

539 

Buchanan  v.  Gibbs 

363 

Bumpus  V.  Platner 

414 

V.  Hubbard 

449 

Bunbury  v.  Bunbury 

603 

V.  Marsh 

659 

Bunce  v.  Gallagher 

681 

V.  Moore 

438 

444 

Bunch  V.  Grave 

252 

V.  Turner 

175 

Bvmdy  v.  Sabin 

299 

Buck,  In  re 

197 

Bunn  V.  Winthrop 

115, 

116 

Buck  V.  HoUoway 

427 

Bunnell's  Appeal 

625, 

641 

V.  Payne 

235 

Bunnell  v.  Bronson 

.391 

V.  Pike 

135 

142 

Burbank  v.  Whitney 

216 

xliv 


TABLE    OF    OASES. 


[The  references  are  to  the  pages.] 


Burch  ?'.  Breckenridge 

175 

Burt  V.  Wilson 

519 

Bind  Orphan  Asylum  v. 

School 

Burtch  V.  Elliott 

390 

District 

198 

Burton  v.  Black 

597 

Buidine  t\  Burdine 

542 

V.  Hadeu 

295 

Burger  v.  Burger 

269 

V.  Landon 

543 

Burgess  v.  Burgess 

655 

Burwell  v.  Fauhcr 

497 

V.  Moxom 

524 

Buse  V.  Page 

242 

V.  Wheate 

85,  99, 

223 

Busch  V.  Gross 

654 

Burgesses    of    East    Retford    v. 

Bush's  .\ppeal 

90, 

92,94 

,  179 

Thos.  de  Hercy 

12, 

579 

Bush  i\  Allen 

166 

Burgin  v.  Giberson 

307 

V.  Boutelle 

69 

Burgoon  v.  Johnson 

283 

1).  Golden 

427 

Burk's  Appeal 

551 

V.  Lathrop 

274 

Burk  V.  Adams 

450 

V.  Marshall 

519 

Burke  v.  Cassin 

658 

V.  Stanley 

141 

V.  Mead 

552 

Bushnell  v.  Bushnell 

785 

V.  Murphy 

59 

V.  Harford 

681 

V.  Snively 

607 

Bushong  V.  Rector 

583 

Burkholder's  Appeal 

297 

V.  Taylor 

493 

Burkmaster  v.  Thompson 

552 

Buskirk  v.  Peck 

736 

Burland  ik  Earle 

377 

Bussman  v.  Ganster 

279 

Burleigh  v.  Palmer 

518 

Butch  V.  Lash 

589 

Burn  V.  Carvalho 

266 

270 

Butcher  v.  Kemp 

455 

Burne  v.  Partridge 

61 

V.  Yocum 

418 

Burnell  v.  Bradbury 

561 

Butchers'  Co.  v.  P. 

&  R. 

R.  R. 

Bumet  I'.  Cincinnati 

604 

Co. 

554 

Burnett  v.  Wright 

245 

V.  L. 

&  N. 

R.  R. 

Burnham  v.  Bowen 

508 

509 

Co. 

576 

Burnley  v.  Thomas 

168 

176 

Bute    (Marquis)    v. 

Glamorgan- 

Burns  v.  Caskey 

307 

shire  Canal  Co. 

708 

('.  Huntington  Ban 

k 

485 

Butler,  In  re 

316 

V.  Smith 

542, 

563 

Butler  V.  Birkey 

498 

Burnside  v  Terry 

234 

V.  Burleson 

663 

Burr  V.  8im 

463 

473 

V.  Butler 

186 

V.  Smith 

199 

207 

V.  Duncan 

341 

Burrall   v.  American  Telephone 

I'.  Freeman 

781 

Co. 

620 

V.  Haskell     : 

ne,  339,  340 

,341 

Burrell  i\  Nicholson 

764 

V.  Hicks 

156 

I'.  Root 

538 

V.  Ins.  Co. 

145 

Burrill  v.  Whitcomb 

261 

1-.  O'Hear 

555 

Burris  v.  Landers 

546 

V.  Prentiss 

365 

Burrow  v.  Ragland 

313 

V.  Railroad  Co. 

264 

Burrowes  v.  Lock 

332, 

445 

V.  Rogers 

635 

Burrows  v.  McWhann 

483, 

493 

V.  Rut  ledge 

135 

('.  Leech 

52 

V.  Stevens 

418 

Burrus  v.  Roulhac 

519 

Butman  v.  Hussey 

302 

Burt  V.  Hellyar 

695 

Butsch  V.  Smith 

245. 

V.  Herron 

127, 

129 

Butt,  Ex  parte 

266 

V.  Tucker 

657 

Butt  V.  Ellett 

261 

T.\BLE    OF    f'.'VSES. 

xiv 

[The  references  af e  to  the  pages.] 

Butte  and   Bo-^ton    Min.   C 

O.     V. 

Calloway  v.  Witherspoon 

361 

Montana  Ore  Purchsg.  C( 

~>. 

619 

Calverly  v.  Harper 

294 

Butterfield  v.  Klaber 

638 

Camblos  v.  Philadelphia  &  Read- 

V. Nogales  Co. 

71 

ing  R.  Co. 

577 

Buttricke  v.  Brodhurst 

460 

Cambria  Iron  Co.  ?;.  Union  Trust 

Buxton  V.  Jones 

334 

Co. 

509 

i\  Lister 

540 

Cambridge  v.  Littlefield 

439 

Buzard  v.  Houston 

22 

314 

Camden  v.  Dewing 

137 

Byard  v.  Holmes 

321 

V.  Vail 

520 

Byers  v.  Danley 

141 

Cameron  &  Wells,  In  re 

384 

r.  Surget 

340 

Cameron  v.  Boeger 

268 

Byrcball  v.  Bradford 

222 

V.  Parish 

454 

Byrne  v.  Brown 

586 

Camos  Co.  i>.  McConnell 

65 

V.  Byrne 

744 

Camp  V.  Bostwick 

484 

V.  Jones 

71 

V.  Dixon 

623 

V.  Nat.  Bank 

676 

I'.  Ward 

586 

Byrnes  v.  Volz 

390 

Campau  v.  Van  Dyke 
Campbell's  Appeal 

315 
397 

0. 

Campbell's  E.state 
Campbell  v.  Brackenridge 

121 

412 

Cabada  v.  De  Jongh 

266 

267 

V.  Brown 

110 

Cabbell  v.  WilUams 

628 

V.  Bryant 

' 

604 

Cabeen  v.  Breckenridge 

421 

V.  Building  Ass'n 

.321 

Cable  V.  U.  S.  Life  Ins.  Co. 

55 

V.  Campbell 

93 

Cabot  V.  Christie 

331 

V.  Clark 

297 

Cadbury  v.  Duval 

741 

V.  Day 

272 

Cadematori  v.  Gauger 

168 

175 

V.  Dearborn 

244 

Cadigan  v.  Brown 

57 

593 

V.  Ernest 

591 

Cadman  ?'.  Horner 

64 

V.  Foster 

102 

Cadogan  v.  Kennett 

381 

V.  Foster  Home 

495 

Cadwalader's  Appeal 

161 

548 

V.  Freeman 

501 

Cady  V.  Potter 

597 

V.  Johnson 

223 

Cahill  V.  Applegarth 

333 

V.  Kent 

708 

Cain  V.  Hunt 

402 

V.  Leach 

305 

V.  Moon 

122 

V.  McLain 

159 

379 

Cairo,  etc.,  R.  Co.  v.  Titus 

586 

V.  Mesier 

481 

Calder  v.  Chapman 

4.34 

V.  Moore 

337 

Caldwell,  Ex  parte 

271 

V.  MuUett 

720 

Caldwell  v.  Hall 

248 

V.  Murphy 

705 

V.  Hartupee      265 

,  266 

267 

V.  Rust 

571 

684 

V.  Knott 

633 

);.  Seaman          61 

,637 

639 

7-.  Williams        li:', 

,121 

546 

V.  Walker 

159 

Caledonia   Ins.  Co.   v.   Northern 

Canadian  Religious  Ass'n  r. 

Par- 

Pacific  Ry.  Co. 

491 

menter 

667 

Calhoun  v.  Millard 

61 

Canal  Commrs  v.  Sanitary 

Dist. 

548 

California  v.  McCllynn 

313 

V.  Village  of  East 

California  Fruit  .\ss'n  v.  Sti 

■lling 

41;; 

Peoria 

607 

613 

Callaway  r.  Webster 

622 

Canal  Company  v.  Clark 

(i54 

(i57 

CaUis  V.  Waddy 

317 

V.  Sansom 

286 

xlvi 


T.XrtLK    OF    CASES. 


[The  references  are  to  the  pages.] 


Canavan  v.  Paye 

17 

Carr  v.  Rising 

243 

Canedy  v.  Marcy 

307 

V.  Wallace 

439 

Canfield  r\  Bostwick 

512 

Carrico  v.  Farmers'  Bank 

518 

Canning  v.  Canning 

698 

Carrington  v.  Didier 

736 

Cannon  v.  Barry 

616 

Carritt  v.  Real  &  Pers.  Adv.  Co. 

77 

V.  Collins 

561 

Carroll  v.  Ballance 

234 

V.  Hudson            50] 

,  502 

,519 

V.  Johnston 

412 

V.  McNab 

56 

V.  Lee 

167 

Canosia  (Township  of)  v.  Town- 

V. Smith 

119 

ship  of  Grand  Lake 

484 

V.  Van  Rensselaer 

519 

Cantrrbviry  Aqueduct  Co.  ;;. 

Ens- 

Carron  Iron  Co.  i'.  Maclaren 

603 

worth 

548 

Carrow  v.  Headley 

252 

Canton  Co.  ;;.  Railroad  Co. 

552 

Carson  v.  Bellies 

391 

Cape  V.  Plymouth  Cong.  Church 

667 

V.  Broady 

694 

,698 

Cape  Breton  Co.,  In  re 

377 

V.  Carson 

126 

Capen  v.  Garrison 

495 

V.  Dunham 

604 

Capers  v.  McCaa 

140 

V.  Fuhs 

91 

Caplinger  v.  Stokes 

147 

V.  Murray 

190 

Capliu's  Will,  Inre 

132 

Carswell  v.  Lovett 

179 

Carbery  v.  Western 

773 

Carter  v.  Balfour 

206 

Carew  v.  Rutherford 

353 

V.  Becker 

145 

Carey  v.  Mackey 

190 

V.  Boehm 

329 

Carhart's  Appeal 

115 

V.  Carter       142,  190, 

671 

,698 

Carley  v.  Graves 

147 

V.  Challen 

136 

,422 

Carling's  Case 

379 

V.  City  of  Chicago 

668 

Carlisle  v.  Cooper   611,  630, 

6;-!2, 

V.  Ferguson 

665 

633 

634 

V.  Jones 

494 

V.  Jumper 

412 

V.  Nichols 

265 

V.  Stevenson 

577 

V.  Tanners'  Leather  Co. 

504 

Carlon,  Ex  parte 

267 

V.  Taylor 

695 

Carlton  v.  Hulett 

318 

V.  Thompson 

159 

379 

V.  Salem 

57 

('.  Woolfork 

777 

Carney  v.  Carney 

11!) 

369 

Carter-Crume  Co.  v.  Peurrun, 

353 

Carpenter,  In  re 

108 

Cartwright  v.  Green 

763 

Carpenter  v.  Bowen 

237 

V.  W^ise 

144 

V.  Carpenter 

449 

Caruthers  v.  Humphrey 

234 

V.  Cushman 

111 

Carver  r.  Peck 

730 

V.  Danforth 

373 

Carveth  v.  Winegar 

244 

V.  Jones 

292 

Cary  v.  Askew 

454 

V.  Mitchell 

174 

V.  Cary 

366 

V.  Mut.  Ins.  Co. 

53!) 

542 

Casborne  r.  Scarfe 

233 

V.  Plagge 

67 

Casciola  v.  Donatelli 

135 

139 

V.  Snelling 

243 

Case  of  Jesus  College 

198 

C.  &  A.  R.  R.  r.  Kcegan 

448 

Case  V.  Abeel 

719 

Carr  v.  Briggs 

383 

V.  Beauregard 

732 

V.  Carr 

244 

V.  Case 

340 

V.  Eastabrooke 

184 

V.  Codding 

138 

V.  Graham 

325 

r.  Fant 

252 

V.  Nat.  Bank,  etc.,  Co. 

329 

V.  Fishback 

278 

TABLE    OF   CASES. 


xlvii 


[The  references  are  to  the  pages.] 


Case  V.  Gerrish 

392 

V.  McCabe 

528 

V.  Peters 

307 

Casey  v.  Cincinn.  Typo 

gr.  Union 

670 

Casler  v.  Thompson 

562 

Caspari  v.  First  German 

Church 

363 

Cass  Co.  V.  Oldham 

297 

Cassedy  v.  Jackson 

255 

Cassel  V.  Lowry 

519 

Cassem  v.  Heustis 

244 

Casteel  v.  Fhnt 

114 

Castle  V.  Kemp 

680 

V.  Secretary 

607 

V.  Wilkinson 

567 

Castlehow,  In  re 

220 

Castleman  v.  Veitch 

692 

695 

Caston  V.  Caston 

459 

Caswell  V.  Davis 

654 

Cater  v.  Eveleigh 

176 

Cathcart  v.  Robinson 

393,  407, 

535, 

571 

1).  Nelson's  Admr.  Ill 

Catherwood  v.  Watson  145 

Catlin  V.  Henton  234 

Caton  V.  Caton  327,  563 

Caughey  v.  Bridenbaugh  371 

Caulfield  v.  Van  Brunt  261 

Cavander  v.  Bulteel  420 

Caver?.  Cave  411,416 

Cecil  V.  Juxon  186 

V.  Spurger  328 

Bank  v.  Snively  135 

National  Bank  v.  Thurber      150 

Cellular  Clothing  Co.  i'.  Maxton 

651,  658 

Centaur  Co.  v.  Link  650 

V.  Marshall  653 

V.  Neathery  653 

Central  Land  Co.  v.  Obenchain       ;]75 

Railway  Co.  of  Venezuela 

(Directors  of)  v.  Kisch  323 
Salt  Co.  V.  Guthrie  355 

Trans.  Co.  v.  Pullman's 

Car  Co.  356 

Trust  Co.  V.  Continental 

Trust  Co.      353, 
741 
V.  Ohio   Cent . 
R.  Co.  261 


Central  Trust  Co.  v.  Respass 

V.  West  India 


65 


Imp.    Co.     63, 
258,   259,    261, 


272 


274, 


Centre  (Twp.  of) 


412 
Marion  Co. 

586 
548 
551,  554 
653 


Chabot  V.  Winter  Park  Co 

Chadwick  v.  Chadwick 

V.  Covell 

V.  Manning  437 

V.  Turner  426 

Chafee  v.  City  of  Aiken  440 

V.  Quidnick  Co.  666 

Chaffee  r.  Browne  172 

Chaff ees  r.  Risk  76 

Chalfant  v.  Williams  299 

Chamber  of  Commerce  r.  Wells      647 

Chamberlain  v.  Blue  544 

V.  City  of  Tampa       607 

V.  Maynes  92 

V.  McClurg  316 

V.  Thompson  234,  249 

Chamberlaine  v.  Chamberlaine       313 

Chamberlayne  v.  Temple  488 

Chambers  v.  Ala.  Iron  Co.  536 

V.  Bookman  442 

V.  Cannon  683 

V.  Chambers  341 

V.  Crabbe  394 

V.  Goldwin  241 

V.  Lancaster  265 

V.  St.  Louis  208 

Chambersburg  Sav.  Fund's  App.  217 

Champion  v.  Brown  537 

Champlin  v.  Champlin     135,  145,  190 

('.  Laytin  292,  296 

Chance  v.  Beall  543 

Chancey's  Case  744,  745 

Chandeiorv.  Lopus  310,  323 

Chandler  v.  Chandler  548 

V.  Moulton  223 

V.  Pomeroy  297,  542 

V.  Von  Roeder  383 

Chapin  v.  Cooke  350 

('.  Dake  346 

V.  Pease  390 

V.  Universalist  Society        95 


xlv'iii 


TAHLK    OF    CASES. 


[The  references  are  to  the  pages.] 


Chapman,  In  re  218,  603 

Chapman  v.  B.  &  T.  Pub.  Co.  59 

V.  Beardsley  519 

V.  Chapman     439,  521,  524 

V.  Lee  762 

V.  Wilbur  112 

Chappedelaine  v.  Dechenaux         692 

Chappie  V.  Mahon  241,  242 

Charles  i'.  Coker  168 

Charles  E.  Wiswall  (The)  66 

Charleston  Gas  Co.  v.  Kanawha 

Gas  Co.  354 

Charlestown  Ry.  Co.  v.  Hughes       68 

Charlesworth  v.  Holt  189 

Charman  v.  Charman  778 

Charter  v.  Trevelyan  316 

Chartier  v.  Marshall  557 

Chase's  Appeal  444 

Chase's  Case  702 

Chase  v.  Allen  284 

V.  Barrett  279 

V.  Chase  126,  132 

V.  Curtis  734 

V.  Lockerman  511 

V.  Palmer  182 

V.  Peck  525 

V.  Petroleum  Bank  267 

V.  Woodbury  489 

Chastain  v.  Hames  521,  522 

/•.  Smith  137,  147 

Chattanooga  Terrni.  liy.  Co.   v. 

Felton  578 

Chaudron  v.  Magee  428 

Chauncey  v.  Leominster  556 

Cheesebrough  v.  Millard         488,  498, 

501,  522 
Cheever  v.  Wilson  175 

Chehak  v.  Battles  543 

Cheney  v.  Bilby  288 

Cherbonnier  v.  Evitts  363 

Cherry  v.  Stein  63(i 

Chertsey  Market,  In  re  608 

Chesapeake  and  Ohio  11.  R.  Co. 

V.  Walker  437 

Che.shirc  v.  Payne  394,  396 

Chesson  v.  ("hesson  ()92 

Chesterfield  v.  Janssen     36,  319,  3;!8, 


Chestnut  St.   National  Bank  v. 

Fidelity  Ins.  Co.  117 

Cheswell  v.  Chapman  698 

Chew  V.  Bamet  412 

V.  Nicklin  465 

Chewning  v.  Singleton  281 

Chicago  V.  Cameron  680 

Chicago  (City  of)  v.  Collins  595 

V.  Stock  Yards 

Co.         65, 640 

Chicago  &  A.  Ry.  Co.  v.  N.  Y., 

L.  E.  &  W.  R.  Co.         576 
V.  Bclliwith  361 

B.  &  Q.  R.  Co.  V.  City  of 

Nebraska  604 

B.  &  Q.  R.  Co.  V.  Quincy  667 
B.  &  Q.  R.  R.  Co.  V.  Pro- 
volt  265 
Coal  Co.  V.  People  354 
Edison  Co.  v.  Fay  541 
etc..   Cent.   Ry.   v.  Tit- 

terington  327 

Gas  Light  Co.  v.  People's 

Gas  Light  Co.  354 

Gen.  Ry.  Co.  v.  Chicago, 
Burl.  &  Quincy  R.  R. 
Co. 
Hansom     Cab     Co. 


155, 

Ry.  Co.  V. 
Palace    Car 


341, 


Chesterman  v.  Gardner 


342, 343 
421 


Yerkes 
M.  &  St.  P 
Pullman 
Co. 
V.  N.  Y.,  L.  E.  &  W.  R. 

Co. 
R.  Co.  V.  Nichols      265 
V.  Winslow 
Ry.  Co  V.  Volhnan 
V.  Third  Nat.   Bank 
V.  Wab.,  St.  L.  &  Pac. 

Ry.  Co. 
Union   Bank   r.  Kansas 
City  Bank 
Chichester  v.  Bickerstaff 
Chick  V.  Willetts 
Chicora  Fert.  C'o.  v.  Dunan 
('liicot  Lumbc^r  ("o.  v.  Dardell 
Child  v.  Douglas 

r.  Mann 
Childers  v.  Neely 


641 
373 

590 

662 
275 

95 
604 

52 

354 

784 
477 
234 
320 
52 
578 
598 
715 


TABLE    OF    CASES. 


xlix 


[The  references  are  to  the  pages.] 


Children's  Hospital  (Appeal  of)  200 
Childs  V.  Hurd  247 

V.  Waite  216 

Chiles  V.  Gallagher  223,  776 

Chilton  V.  Lyons  519 

Chipman  v.  Morrill  483 

Chippendale,  Ex  parte  525 

C;hisvvell  v.  Morris  703,  704 

Cholmondelay  v.  Clinton         237,  405 
Chorpenning's  Appeal  160,  223 

Chouteau  v.  Boughton  265 

Chrisman  v.  Hough  157 

Christ  V.  Diffenbach  401 

Christ's  Hospital  v.  Grainger  213 

Christian  Church  v.  Carpenter         667 
Christie  v.  Davey  638 

Christler  v.  Meddis  467 

Christmas  v.  Griswold  267 

V.  Russell  267 

Christopher     St.     Ry.     Co.     v. 

Twenty-third  St.  Ry.  Co.  300,  674 

Christy,  Ex  parte  602 

Christy  v.  Barnhart  562 

Chupp  r.  Upton  379 

Church  Bldg.  Soc.  v.  Free  Church  274 

Church  V.  Church  208,  414 

V.  Cole  242 

V.  Hinton  198,  199 

V.  Ruland  3,  56,  154,  161, 

162,  313,  337,  415 

V.  Sterhng  147 

V.  Winton  405 

Church  of  Latter-Day  Saints  v. 

United  States  (Mormon  Church 

Case)  204,  206,  216 

Churcher  v.  Guernsey  418 

Churchill  v.  Churchill  457 

V.  Scott  360 

Chute  V.  Quincy  65,  550 

Cicero  Lumber  Co.   v.  Town  of 

Cicero  640 

Citizens'  Bank  v.  Burrus  448 

V.       First       Nat. 
Bank  268,  327 

Citizens'  Loan  Co.  v.  Boston  R. 

R.  Co.  266 

Citizens'  Savings  Bank  ?'.  Kock     251 

City  Bank  v.  Bangs        y  601 

V.  Luckie  517 


City  Council  v.  Page  418,  428 

V.  Reynolds  638 

City  Councils  v.  Semle  624 

City  of  Albert  Lea  v.  Nielsen        593, 

594,  596 
Bainbridge  v.  Reynolds  591 
Chicago   V.  Chicago  City 

Ry.  Co.      58,  596 
V.  Collins  595 

Columbus  V.  Jaques  641 

Denver  r.  Beede  591 

Findlay  v.  Pertz  374 

Georgetown    v.    Alexan- 
dria Canal  Co.         625,  626 
Hartford  v.  Chipman  57 

Jeffersonville    v.    Bridge 

Co.  605 

Keokuk  v.  Love  484 

Lincoln  ii.  Morrison  148 

New  Castle  v.  Raney  633 

Phila.  (Appeals  of)  265 

Phila.  V.  Davis    451,  456,  458 
V.  Girard's  Heirs     192, 
205,  206,  213 
St.  Louis  V.  Knapp  625 

St.  Paul  V.  Seymour  150 

Trinidad  v.  Milwaukee  & 
Trinidad  Sm.  &  Ref. 
Co.  418 

Civil    Service    Supply    Ass'n    v. 

Dean  650 

Clad  i>.  Paist  71 

Clagett  V.  Kilbourne  716 

v.  Salmon  688 

Clair  School  Board's  Appeal  606 

Clancarty  v.  Clancarty  131 

Clapp  V.  Leatherbee  393 

r.  Rice  484 

V.  Tower  467 

Clarendon  (Earl  of)  v.  Hornby       697 

Clark's  Appeal  54,  621,  659 

Clark  V.  Allen  54,  57 

V.  Bank  268 

V.  Cantwell  156 

1'.  Clark  135,  139,  189 

227,  369,  658 

V.  Condit  240 

V.  Douglass  381 

V.  Everhart  334 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Clark  V.  Fosdick 

190 

Clayton  v.  Cary 

54 

V.  Freeman 

653 

V.  Hallett            194 

,  197,  216 

V.  Garfield 

220 

V.  Illingworth 

535 

V.  Gordon 

536 

Claytor  v.  Pierson 

122 

V.  Harper 

383,  387 

Cleavenger  v.  Franklin  Fire  Ins. 

V.  Henry 

240 

Co. 

280 

V.  Henry's  Adm'r 

56 

Cleaver  v.  Taylor 

569 

V.  Hershy 

295 

Clegg  V.  Hands 

410 

V.  Hutzler 

551 

V.  Rowland 

616 

V.  Jones 

246 

Cleghorn  v.  Zumwalt 

300 

V.  Lyon 

242 

Cleland  v.  Fish 

368 

V.  Maquire 

167 

Clem  V.  Meserole 

777 

V.  Martin 

580 

Clement  t\  Cheesman 

122 

V.  Miller 

172 

V.  Hyde 

197 

V.  Muran 

266 

Clements  v.  Moore 

381,  384 

V.  Needham 

353 

V.  R.  R.  Co. 

284 

V.  Parsons 

440 

V.  Welles 

663,  664 

V.  Partridge 

401 

Clementson  ?'.  Gandy 

458 

V.  Patterson 

154 

Clemmons  ?'.  Cox 

68 

?'.  Reyburn 

246 

Clemson  r.  Davidson 

266 

V.  Robinson              56 

313,  314 

Clendening  v.  Wyatt 

257,  342 

V.  Roller 

695 

Clery's  Appeal 

512 

V.  Seagraves 

244 

Cleveland  v.  Burrill 

538 

V.  Sewell 

744 

V.  Citizens'  Gas  Light 

r.  Sigua  Iron  Co. 

267 

Co. 

632, 639 

V.  Sisson 

441 

Clevenstine's  Appeal 

168 

V.  Truitt 

554,  712 

Click  V.  Click 

147 

Clarke  et  al.  (Appeal  of) 

690 

Clifford  V.  Stewart 

128 

Clarke  v.  Birley 

501 

Clift  V.  Moses 

465,  466 

V.  Clayton 

696 

Clifton  V.  Cockburn 

296 

V.  Deveaux 

372 

V.  Davis 

361 

V.  Dickson 

324 

CHmer  v.  Hovey 

559 

V.  Drake 

288 

Clinan  v.  Cooke 

563,  677 

V.  Dutcher 

297 

Clinchfield  Co.  v.  Powers 

550 

V.  Franklin            470, 

473,  474 

Clinkenbeard  v.  Weatherman         334 

V.  Hart 

61 

Clinton  v.  Myers 

65 

V.  Henshaw 

511 

Clinton     Hill     Lumber     Co 

.       V. 

V.  Lott 

115 

Strieby 

245 

V.  Price 

664 

Clinton     School     District's 

Ap- 

V.  Royle 

521 

peal 

605 

V.  White 

335 

Clinton   (Town   of)   v.  Town   of 

Clarksdale  v.  Broaddus 

606 

Westbrook 

227 

Clarkson  v.  Morgan 

428 

Clive  V.  Carew 

172,  228 

Claude  v.  Handy 

698 

Clodfelter  v.  Cox 

272 

Claussen  v.  La  Franz 

147 

( Uoudas's  Ex'r  v.  Adams 

741 

Clavering  v.  Claver^ng 

116 

Clouse's  Appeal 

555 

Clay  V.  Hart 

452, 459 

Clowes  V.  Dickenson 

489,  502 

V.  Lay  ton 

117 

Cluney  v.  Lee  Wai 

638,  639 

Claydon  v.  Green 

569  1 

Clyde  V.  Simpson 

431 

TABLE    OF    CASES. 


li 


[The  references  are  to  the  pages.] 


Coal  Creek  Co.  v.  Tennessee  Coal 

Colclough  V.  Boyse 

776 

Co. 

284 

Cole  V.  Brown 

383 

Coates  V.    First    Nat.    Bank    of 

V.  Colly 

54 

Emporia 

268 

V.  Cunningham 

73 

,585 

V.  Gerlach 

188 

,389 

i\  Fickett 

154 

,297 

Coats  V.  Merrick  Thread  Co. 

653 

657 

V.  Gibson 

347 

Cobb's  Appeal 

173 

174 

i>.  Littlefield 

lie 

Cobb  V.  Day 

243 

V.  Mette 

54 

V.  Illinois  &  St.  L.  R.  Co. 

668 

V.  O'Neill 

395 

Cobbethorn  v.  Williams 

13 

V.  Stokes 

372 

Cobia  V.  Ellis 

620 

V.  Van  Riper 

174 

Coble  V.  Nonemaker 

410 

V.  Wade 

132 

Cobum  V.  Raymond 

681 

Cole  Silver  Min.  Co.  v.  Virg. 

Co. 

577 

Cochonour  v.  Ratcliff 

390 

Coleman's  Appeal 

566 

684 

Cochran  v.  McCleary 

55 

Estate 

369 

V.  O'Hern 

99 

173 

Coleman  v.  Coleman 

693 

V.  People's  Ry.  Co. 

284 

V.  Columbia  Oil  Co 

318 

Cochrane  v.  O'Brien 

599 

V.  Jaggers 

778 

Cock  V.  Van  Etten 

316 

V.  O'Leary's  Ex'r 

192, 

Cockell  V.  Bacon 

609 

199, 

209 

Cockrell  v.  Cockrell 

68 

V.  Wooley 

175 

Cockrum  i\  West 

495 

Coles  V.  Trecothick 

372 

Cocks  V.  Chandler 

650 

Colgan  V.  Oil  Co. 

552 

V.  Chapman 

218 

Colgate  V.  Colgate 

379 

V.  Izard 

325 

Collar  V.  Collar 

146 

Codd  V.  Codd 

787 

Collier  v.  Alexander 

777 

Coddington  v.  Pensacola  &  Geor- 

V. McBean 

555 

gia  R.  Co. 

404 

V.  Miller 

440 

Coder  v.  Hulmg 

147 

7'.  Pfenning 

439 

Codington  v.  Lindsay 

452 

Collingwood  v.  Row 

468 

475 

Codman  v.  Brigham 

213 

Collins's  Appeal 

261 

Coe  V.  L.  &  N.  R.  Co. 

576 

Collins  V.  Archer 

413 

706 

V.  Winnipiseogee  Co. 

633 

V.  Carlisle 

126 

132 

Coffee  V.  Ruffin 

340 

V.  Case 

377 

Coffey  V.  Sullivan 

340 

V.  Castle 

663 

Coffman  v.  Castner 

654 

V.  Champ's  Heirs 

463 

V.  Liggett 

63 

V.  Collins       190,  364 

397 

521 

V.  Lookout  Bank 

362 

V.  Dickinson 

695 

Cogan  V.  Duffield 

97 

V.  Green 

68 

605 

I'.  Stephens 

471 

472 

V.  Lewis 

111 

117 

Coggeshall  v.  Pelton 

200 

201 

V.  Locke 

355 

Coggs  V.  Bernard 

528 

V.  London  Gen.  Omnibus 

Coggswell  V.  Griffith            • 

690 

Co. 

766 

Cohen  v.  Berlin  and  Jones  Env. 

1'.  Park 

568 

Co. 

354 

V.  Steuart 

117 

Cohn  i\  Chapman 

138 

Collins  Co.  V.  Brown 

651 

Coker  v.  Simpson 

621 

CoUinson  ii.  Patrick 

117 

Colburn  v.  Simms 

642 

CoUis  r.  Robins 

512 

Colby  V.  Kenniston 

427 

Colliton  V.  Oxborough 

620 

Ifi 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Collyer  v.  Fallon  2«4 

Colman  v.  Eastern  Counties  Rail- 
way Co.  668 
V.  Barrel                        114,  787 
Colonial  Bank  v.  Cady                     434 
V.  Hepworth   429,  434 
Colorado    Coal    Co.    v.    United 

States  315 

Colorado  Fuel  Co.  v.  Kidwell  266 

Colson  V.  Thompson  552 

Colt  r.  Ives  271 

Colton  V.  Colton  127 

I".  Depew  61 

V.  Ross  312 

Columbia  (Bank  of)  r.  Hagner       549 

Coll.  V.  Thacher  661 

Electr.  Co.  r.  Dixon       324 

Mill  Co.  V.  Alcorn  654 

Columbian  Athletic  Club  v.  State  626 

Bank's  Estate  149, 

418,  423 


Columbine  v.  Chichester 

539 

Columbus  (City  of)  v.  Jaques 

641 

Colvin's  (Rachel)  Case 

781 

Cohvell  ?'.  Woods 

243 

Colyer  i\  Clay 

550 

V.  Finch                          275 

413 

Comer  r.  Lehman  &  Co. 

261 

Coming,  Ex  parte 

524 

Commerce  (Bank  of)  Appeal  of 

250 

271 

Commercial  Bank  v.  Cab(41 

590 

t'.  Western  Reserve  Bank 

489 

Commercial  Mut.  &  Ins.  Co.   r. 

The  Un.  Mut.  Ins.  Co.           52 

542 

Commercial  Nat.  Bank  v.  Port- 

land 

266 

Commercial    Union    Ins.    Co.    v. 

Scammon 

159 

Commissioners  v.  Long 

625 

V.  Pemsel         194, 

196 

-    i\  Walker 

215 

Commonwealth     ex      rel.     .\tt.- 

Gen.  V.  American  Life  Ins.  Co. 

268 

Commonwealth  v.  .Addicks 

753 

V.  Bank 

668 

V.  Bank  of  Pa. 

668 

V.  Crompton 

270 

V.  Martin 

469 

Commonwealth  v.  McAllister 

148,  219 
V.  McGovern  638 

V.  Moltz  435, 

437,  438 
V.  Pittsburgh    & 
Connellsville 
R.  Co.  620 

V.  Reading  Trac. 

Co.  404 

V.  Richards  190 

V.  Rush  625 

V.  StaufTer  350 

V.  Stevens  635 

V.  Supervisors       604 
V.  Watmough        270 
Commonwealth  Bank  of  Pa.   r. 

-Armstrong  149 

Compton  r.  Greer  692 

Comstock  r.  Johnson  67 

V.  McDonald  718 

V.  Smith  436 

Conaway  i\  Sweeney  536 

Concord  Bank  v.  Bellis  449 

r.  Gregg  336 

Cone  r.  Cone  216,  545 

Congregation  ?■.  Williams       435,  438 

Congress  and  Empire  Spring  Co. 

V.  High  Rock  Spring  Co.  651 

Conkey  r.  Rex  244 

Conklin  v.  Conklin  698 

r.  Davis  196 

V.  Wehrman  590 

Conley  v.  .Alabama  Gold  Life  Ins. 

Co.  597 

Conn.  Life  Ins.  Co.  v.  Smith  417 

Conn.    Mut.    Life    Ins.    Co.    v. 

Tucker  599 

Conn.    River    Saving    Bank    )•. 

Albee  114 

Connely  ?■.  Harrison  267 

Conner  v.  Chase  677 

C'onnolly  ?'.•  Branstler  449 

Connor  7\  Groh  682 

V.  Stanley  373 

Conover  r.  The  Mayor  587 

Conrad  r.  Foy  500 

V.  Harrison  489 

Consequa  v.  Fanning  692 


TABLE    OF    C.\SES. 

nil 

[The 

references  are  to  the  pages.] 

Consol.,  etc.,  Co.  v.  O'Neill 

315 

Cooke  V.  Nathan 

328 

Consol.  Gas  Co.  v.  New  York 

593 

&  Cobb  Co.  V.  Miller 

654 

Consol.  Water  Power  Co. 

V.  Nash 

544 

Cookes  i;.  Culbertson 

248 

Const  y.  Harris 

716 

Cookson  V.  Cookson 

466, 

476 

Constable  v.  Bull 

131 

V.  Reay 

466 

Constant  v.  Matteson 

224 

V.  Toole 

174, 

175 

Consumers'    Oil   Co.   v. 

Nunne- 

Cooley  V.  Cooley 

141, 

144, 

145 

maker 

353 

IK  Brayton 

42S 

Continental  Nat.   Bank 

V.  Nat. 

Coolidge  V.  Knight 

- 

114 

Bank  of  the  Commonwealth 

447 

Coombe  v.  Carter 

259, 

262 

Continental  Nat.  Bank  v 

Weems 

149 

V.  Meade 

54 

Continental   Wall   Paper  Co.   v. 

Coon  ?>.Swan 

767 

Voight 

356 

Cooney  v.  Lincoln 

361 

Contoocook  Precinct  v. 

tlopkin- 

V.  Woodbum 

180 

ton 

494 

Coope  V.  Twynam 

484 

Converse  v.  Blumrich 

330 

Cooper's  Estate 

90 

466 

V.  McKee 

720 

Cooper  V.  Colsen 

563 

Conville  v.  Shook 

691 

V.  Cooper 

399 

458 

Conway's  Ex'rs  v.  Alexander 

243 

V.  Davis 

617 

Conway  v.  Cutting 

266 

V.  Farmers'  Ins 

Co. 

300 

675 

V.  Garden    City 

Paving 

V.  Hood 

712 

Co. 

326 

V.  Lovering 

323 

Conwell  V.  Evill 

677 

V.  MacDonald 

99 

170 

Conyngham's  Appeal 

529 

V.  Phibbs 

156 

295 

296 

Cooch  V.  Gerry 

234 

235 

('.  Reilly 

264 

339 

Cook's  Adm'rs  v.  Cole 

681 

Coop  wood  V.  Bolton 

691 

Cook  &  Gleason,  In  re 

722 

Coorg  (Rajah  of)  v.  East  India 

Cook,  Ex  -parte 

720 

Co. 

767 

Cook  V.  Bagnell  Co. 

361 

Cooth  V.  Jackson 

565 

V.  Barr 

109 

Coover's  Appeal 

726 

V.  Brightly 

252 

Cope  V.  Hastings 

607 

V.  Carpenter 

734 

IK  Smith 

500 

V.  Colyer's  Adm'r 

391 

Copis  IK  Middleton 

491 

493 

V.  Cook          325,  337,  401, 

465 

Cop  page  V.  Barnett 

138 

V-.  Finkler 

235 

Coppedge  v.  Threadgill 

182 

185 

V.  Foster 

252 

Coppes  V.  Keystone  Paint  Co. 

675 

V.  Gregson 

237, 

740 

Corbett  v.  Craven 

301 

V.  Johnson 

382 

V.  Poelnitz 

171 

V.  Kennedy 

167 

Corbin  v.  Baker 

160 

V.  Liston 

301, 

675 

V.  Cantrell 

175 

V.  Manicus 

428 

Corbitt  V.  Corbitt 

695 

V.  Martin 

157 

Corby  v.  Bean 

67 

V.  Rosslyn 

598 

V.  Chicago,  R.  I. 

&P. 

Ry. 

Cooke  V.  Barrett 

60 

Co. 

624 

V.  Boynton 

577 

Cordingley  xk  Cheesebrough 

560 

V.  Chilcott 

575, 

664 

Corinth  v.  Locke 

776 

V.  Dealey 

471 

Cornelison  v.  Foushee 

777 

V.  Husbands 

174 

175 

Cornell  v.  Andrews 

556 

V.  Lamotte 

iiy, 

365 

i>.  Hall 

243 

liv 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Cornell  v.  Lovett 

349 

V.  Maltby 

422 

Cornell  University  v.  Parkinson 

444 

Corn  Exchange  Ins.  Co. 

V.  Bab- 

cock 

175 

Corn  Exchange  Nat.  Bk. 

V.  The 

Solicitors'  Trust  Co. 

149 

,540 

Cornfoot  i\  Fowke 

336 

Cornick  ;•.  Pearce 

466 

Corning  v.  Lowerre 

625 

,641 

V.  Troy  Factory 

440 

r.  Troy  Iron  Co. 

575 

Cornish  r.  Abington 

447 

i\  Bryan 

681 

V.  Clark 

383 

V.  Johns 

328 

V.  Wilson 

741 

Cornwall  v.  Cornwall 

718 

&    Lebanon    R 

.    Co.'s 

Appeal 

555 

668 

Cornwell  -v.  Orton 

9 

5,99 

V.  Wulff 

99  1 

Corporation  of     Gloucester     v. 

Wood 

151 

Latter  Day  Saints 

i 

V.  Watson 

364  i 

Reading  v 

Lane 

196 

Corps  V.  Robinson 

766 

Corr's  Appeal 

145 

Correll  ?'.  Smith 

606 

Corrigau  v.  Pironi 

364 

Corson  v.  Craig 

273 

1'.  Mulvany 

551, 

552 

Cort  V.  Lassard 

665 

Cory  V.  Cory 

361  1 

Cory  Universalist  Soc.  v. 

Beatty 

199 

Corya  v.  Corya 

219 

Coryton  v.  Helyar 

87 

Costa  Rica   (Repub.  of) 

V.   Er- 

langtT 

776 

Costa  Rica  Ry.  Co.  v.  Forwood 

375 

Cotesworth  r.  Stephens 

515 

Cotheal  v.  Talmage 

284 

Cotterell  r.  Long 

242 

Cottingham  i'.  Moore 

160 

Cotton  V.  Woods 

144, 

145 

Cottrell's  Appeal 

493 

Cottrell  V.  Adams 

238 

Couch  c.  Sutton 

449 

Couch  V.  Terry  483 

Coughhn  V.  Seago  93 

Coulson  V.  Alpaugh  131 

Counterman  i'.  Dublin  440 

Countess  of  Mornington  v.  Keane  262 

County  of  Morgan  v.  Allen  733 

Schuylkill  v.  Copley      316 

Warren  v.  Marcy  429 

Courtright  r.  Barnes  374 

Courtwright  v.  Burns  57 

Coutts  V.  Acworth  457 

Coventry  v.  Coventry  512 

Covington  v.  Griffin's  Admr.  62 

Cowan's  Appeal  368 

Cowan  V.  Curran  550 

V.  Jones  59 

V.  Kane  566 

V.  Plate  Glass  Co.       507,  509 

V.  Southern  Ry.  Co.  624 

Coward  ik  Llewellyn  634 

Cowden's  Estate  489 

Cowdry  v.  Day  239 

Cowee  V.  Cornell  367 

Cowell  V.  Edwards  483 

Cowles  V.  Gale  569 

V.  Raguet  346 

V.  Whitman  541 

Cowley  V.  Cowley  656 

V.  Hartstonge  466 

V.  Wellesley  616 

Cowling  V.  Hill  449 

Cowls  V.  Cowls  749,  751 

Cowman  v.  Harrison  131 

Cowper  V.  Baker  622 

V.  Clerk  595 

Cox  V.  Beard  301 

V.  Corkendall  513 

V.  Delmas  371 

V.  Fenwick  522 

V.  Hickman  711 

V.  McMullin  698 

V.  Middleton  544 

V.  Milner  418 

V.  National  Coal  Co.  324 

1'.  Rogers  459 

r.  Sprigg  113 

Coyne  i".  Supreme  Conclave  338 

V.  Warrior  Southern  Ry.     624 

Cozine  v.  Graham  109 


TABLE    OF    CASES. 

Iv 

[The  references  are  to  the  pages.] 

Crabb  v.  Crabb 

112 

Crescent    Mining   Co.    v. 

Silver 

V.  Pratt 

99 

King  Min.  Co. 

582 

Crabtree  v.  Bramble 

476 

Cressman's  Appeal 

116 

Craft  V.  Dickens 

298 

Cresson's  Appeal 

200, 

215 

V.  Tiathrop 

597 

Creuze  v.  Hunter 

752 

V.  Latourette 

518 

Creveling's  Ex'rs  v.  Jones 

746 

V.  McConoughy 

355 

Crewe  v.  Dicken 

217 

Craig  V.  Ankeny 

481 

Crews  V.  Crews'  Admr. 

108 

V.  Leslie                  463 

468 

473 

Cribbins  v.  Markwood 

3.39 

341 

V.  Watt 

167 

Cridland's  Estate 

221 

Craighead  v.  Swartz 

480 

Crim  V.  England 

546 

Crain  v.  Barnes 

56 

V.  Handley 

586 

Cramer  v.  Mooney 

561 

Crippen  i\  Chappel 

494 

498 

Crampton  v.  Zabriskie 

606 

Critchfield  v.  Kline 

300 

Crandall  v.  Lincoln 

666 

733 

Crocker  v.  Manley 

322 

Crane  v.  BoUes 

467 

V.  Scott 

605 

V.  Bunnell 

587 

Crockett  v.  Crockett 

111 

V.  Bumtrager 

598 

V.  Maguire 

426 

V.  Conklin 

361 

Croft  V.  Adam 

132 

V.  Decamp 

549 

V.  Day 

650 

655 

V.  Deming 

250 

251 

V.  Graham 

343 

Cranford  v.  Tyrrell 

626 

Crompton  v.  Yasser 

113 

115 

V.  Watters 

689 

Cromwell  v.  Amer.  L.  &  T 

Co. 

599 

Cranmer,  Ex  parte 

756 

Crone  v.  Crone 

147 

Cranston  v.  Plumb 

773 

Cronin  v.  Bloemecke 

625 

639 

Cranston  (Lord)  v.  Johnston 

71 

Cronk  v.  Trumble 

549 

Craven  v.  Winter 

117 

Crooker  v.  Crooker 

720 

Craver  v.  Spencer 

536 

565 

Crosby  v.  Huston 

425 

Crawford's  Appeal 

114 

V.  Hutchinson 

777 

Crawford  v.  Jones 

139 

Cross  V.  Her 

774 

V.  Maddux 

326 

V.  London  Anti- Vivisection 

V.  Ross 

780 

Society 

683 

V.  Taylor 

235 

V.  De  Valle 

196 

V.  Whitmore 

187 

Crossley  v.  Elworthy 

383 

V.  Wick 

353 

V.  Lightowler 

632 

Crawley  v.  Timberlake    519, 

523 

616 

Crossling  i'.  Crossling 

1.33 

Crawshay  v.  Maule 

612 

714 

Grossman  «  v.      Penrose 

Ferry 

V.  Thompson 

336 

Bridge  Co. 

336 

V.  Thornton 

597 

599 

Crothers  v.  Crothers 

368 

Craythorne  v.  Swinburne 

483 

Croton  Turnpike  v.  Ryder 

635 

Creath  v.  Sims 

64 

Crow  V.  Clay  County 

197 

Creecy  v.  Grief 

545 

V.  Robinson 

270 

Creed  v.  Lancaster  Bank 

1.35 

142 

Crowder  v.  Tinkler 

639 

V.  Scruggs 

67 

Crowley  v.  Crowley 

138 

C/eeson  v.  Miller 

417 

V.  Hicks 

468 

Creigh  v.  Boggs 

559 

Crown  Coal  &  Tow  Co.  v.  Thomas  689 

Creighton  r.  Roe 

65 

Croxall  V.  Shererd 

87,  94,  99 

Crerar  v.  Williams 

213 

Croyle  v.  Moses 

320 

Cresap  v.  Manor 

520 

Cruc^ij  i'.  Fessler 

323 

Ivi 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Crumb,  Ex  parte 

750 

Curd  V.  \\^ under 

588 

Crumlish  v.  Security  Trust  Co. 

119 

Cureton  v.  Gilmore 

568 

Crump  V.  Lambert          632, 

637, 

638 

Curlett  V.  Newman 

364 

V.  Reid's  Adm'r 

126 

Curling  r.  May 

465 

Crumrine  v.  Crumrine 

144 

Curran  v.  Banks 

158 

Cruse  V.  Barley 

472 

V.  Green 

215 

V.  Paine 

487 

V.  Houston 

286 

Cruttwell  V.  Lye 

353 

Currie's  Case 

379 

Cruwys  v.  Colman    110,  128, 

130, 

131 

Currie  v.  Clark 

51 

Cuba  Colony  Co.  v.  Kirby 

377 

V.  Goold 

297 

Cubberly  r.  Cubberly 

673 

Curry  v.  Keyser 

321 

Cuddee  (Cud)  v.  Rutter 

540, 

541. 

'  I'.  Pile 

746 

544 

548 

Curtenius  v.  Hoyt. 

668 

Culbertson's  Appeal 

89 

Curtin  v.  Salmon  River  Co. 

436 

Culbertson  v.  Witbeck 

116 

Curtir  v.  Engel 

174 

CuUen  V.  Minn.  Loan  &  Trust  Co. 

238 

Curtis  V.  Albee 

298 

CuUop  V.  Leonard 

370 

V.  Auber 

259 

CuUyer  v.  Knyvett 

13 

V.  Crossley 

362 

Culp  r.  Price                     139, 

144, 

145 

V.  Curtis 

702,  705 

Cumberland  v.  Codrington 

487 

513 

V.  Lakin 

104 

Cumberland  Co.  v.  Sherman 

296 

V.  Lunn 

415 

Cumberland    Class   Mfg.   Co 

.     V. 

V.  Mundy 

418 

Glass  Bottle  Blowers'  Ass 

'n 

628 

V.  Simpson 

182 

Cumberland  Nat.  Bank  v.  Baker 

261 

V.  Stilson 

321 

Cumberland    Union    Bk.   Co 

.    I'. 

V.  Van  Bergh 

284 

Maryport  Hematite  I.  &  S. 

Co. 

260 

Gushing  v.  Danforth 

157 

Ciunberland    V.    R.    R.    Co 

.    1'. 

Cushman  i'.  Church 

608 

Gettysburg  &  Harrisburg  Ry. 

V.  Goodwin 

147 

Co. 

554 

V.  Thayer  Mfg.  Co.         541 

Cumming  v.  Williamson 

174 

Cusimans  v.  Olive  Oil  Co. 

658 

Cummings's  Appeal 

339 

454 

Custar    V.    Titusville    Gas 

and 

Cummings  Co.  v.  Deers 

640 

Water  Co. 

336 

Cummings  i\  Arnold 

564 

Cuthbert  v.  Wolfe 

167 

V.  Coe 

672 

Cutler  V.  Babcock 

338 

V.  Union   Blue  Stone 

V.  Roanoke    R.    R., 

etc.. 

Co. 

354 

Co. 

316,  322 

Cummins  v.  Balgin              ^ 

676 

V.  Smith 

402 

Cunliffe  v.  Cunliffe 

128 

V.  Tuttle 

140 

Cunnack  v.  Edwards 

195 

Cutting  V.  Dana 

554 

Cunningham  v.  Bell 

145 

V.  Gilbert 

594 

V.  Cimningham 

565 

Cutts  V.  Perkins 

257,  266 

V.  Davenport 

110 

Cuyler  v.  Ferrill 

695 

V.  Jones 

371 

Cycle  Co.  v.  Waggener 

504 

V.  Macon 

and 

Brunswick 

R. 

D. 

R. 

494 

Cupit  V.  Jackson 

780 

Dabney  v.  Green 

236 

Curd  V.  Brown 

144 

Dadirrian  v.  Yacubian 

652 

V.  Field 

431 

Dailcv  r.  Superior  Court 

646 

TABLE    OF    CASES. 


Ivii 


[The  references  are  to  the  pages.] 


Daily  v.  Litchfield 

544 

Davenport  Bridge    Ry.    Cc 

».       V. 

Dakin  v.  Rumsey 

297 

Johnson 

624 

V.  Union  Pacific  R. 

Co. 

684 

David  V.  Moore 

334 

Dale,  Ex  parte 

148 

Davidson  v.  Barclay 

440 

Dale  V.  Cooke 

480 

V.  Burke 

732 

V.  Hamilton 

108 

V.  Kemper 

102 

Dallas  V.  Heard 

175 

V.  Little 

339 

,340 

Dalton,  etc.,   R.  Co.  v.  McDon 

- 

V.  Mayhew 

60 

aid 

668 

V.  Young 

449 

Daly's  Estate 

197 

Davies  v.  Ashford 

476 

Dalzell  V.  Crawford 

535 

555 

V.  Davies 

351 

V.  Dueber  Watch  Co. 

550 

V.  Jenkins 

164 

Damon  v.  Hyde 

215 

V.  Pugh 

495 

Dana  v.  Newhall 

414 

Davis's  Appeal 

221 

,  470 

Daniel  v.  Adams 

550 

Davis,  In  re 

222 

V.  Ferguson 

578 

Davis  V.  Bank  of  England 

411 

V.  Leitch 

704 

V.  Barr 

273 

V.  Mason 

449 

V.  Bigler 

392 

V.  Maxwell 

265 

V.  Cain 

167 

V.  Mitchell 

335 

V.  Christian 

718 

Daniels  v.  Benedict 

189 

V.  Clay 

242 

V.  Davison 

420 

537 

V.  Cummings 

359 

Daniher  v.  Daniher 

397 

V.  Davis                 144, 

279, 

326, 

Dankel  v.  Hunter 

551 

525, 

695 

703 

Danyell  v.  Belyngburgh 

13 

V.  Ely       - 

559 

Danzeisen's  Appeal 

242 

t'.  Foreman 

666 

Darby  v.  Darby 

717 

V.  Frankenlust 

620 

D'Arcy  v.  Blake 

99 

705 

V.  Funk 

528 

Darcy  v.  Kelley 

207 

209 

V.  Harman 

226 

Dargan  v.  Waring 

729 

V.  Hartwig 

582 

Darke  v.  Smith 

546 

V.  Headley 

538 

Darling  v.  Cummings 

548 

V.  Henry 

306 

Darling,  In  re,  Farquhar  v. 

Dar- 

V.  Hoopes 

583 

ling 

196 

V.  Howell 

721 

,722 

Darlington's  Appeal 

373 

V.  Jackson 

323 

Darlington's  Estate 

374 

V.  Kendall 

651 

Darlington  v.  Darlington 

465 

V.  Kerr 

338 

Darnall  v.  Hill 

702 

V.  Kneale 

446 

Darnell  v.  Rowland 

361 

V.  Lane 

715 

Darnely  v.  Lond.,  Chat.  &  Dov. 

V.  Martin 

68 

R.  Co. 

558 

V.  Michener 

608 

D'Arras  v.  Keyser 

468 

V.  Newton 

182 

Dashiell  v.  Att.-Gen. 

206 

V.  Page 

460 

Dashwood  v.  Magniac 

615 

V.  Parker 

538 

Datz  V.  Phillips 

549 

V.  Petty 

546 

,548 

Daughaday  v.  Paine 

519 

521 

V.  Petway 

325 

Dauler  v.  Hartley 

346 

V.  Reed 

622 

Davenport  v.  T. a  timer 

536 

11.  Sawyer 

638 

V.  Penna  R.  R. 

766 

V.  Schwartz 

381 

Ivui 

r.\BLE    f 

[Th 

e  references 

Davis  V.  Sloan 

777 

V.  Smith 

263 

362,  521 

V.  Strange 

364 

V.  ToUemache 

539 

V.  Uphill 

399 

V.  Vass 

493 

V.  Wakelee 

438,  584 

V.  Ward 

416 

V.  Wetherill 

236 

V.  Whitehead 

162 

Davis,  etc.,  Co.  r.  Los  Angele 

s  58,  591 

Davison's  Appeal 

449 

Davison  v.  Davis 

548,  568 

V.  Gregory 

491 

Davoue  v.  Fanning 

151, 

156,  159 

Daw  V.  Terrell 

524 

Dawes  v.  Scott 

512 

Dawson  v.  Dawson 

112, 

113,  117 

V.  Massey 

367 

V.  Newsome 

542 

V.  Sims 

732 

V.  Tremaine 

615 

V.  Williams 

708 

Day  V.  Cohn 

410 

V.  Davis 

240 

V.  Fort  Scott  Invest.  Co.        327 

V.  Hale 

519,  522 

V.  Luhke 

569 

V.  Roth              108, 

111, 

146,  148 

Day  L.  &  C.  Co.  r.  The  State 

680 

Dayton  v.  Multnomah  County       605 

V.  Stewart 

119 

Dayton  Hydraulic  Co.  i 

.  Felsen- 

thall 

784 

Deaconess's  Hospital  v. 

Bontjes    638 

Dean,  In  re 

192,  212 

Dean  v.  Chandler 

264 

V.  Charlton 

67 

V.  Dean 

106, 109 

V.  Fuller 

361 

V.  Ross 

316,  334 

V.  Smith 

785 

V.  St.  Paul  &  Duluth  R 

.R. 

Co. 

265 

Dear,  Ex  parte 

721 

Dearborn  v.  Taylor 

491 

Deare  v.  Soutten 

187 

Dearin  v.  Fitzpatrick 

182 

Dearie  v.  Hall 

271 

OF    CASES. 


Deatly  v.  Murphy  359,  391 

De  Barante  v.  Gott  188 

De  Bardeleben  v.  Bessemer  Land 

Co.  156 

De    Beauvoir    v.    De  Beauvoir   465, 

473 
De  Bevoise  v.  H.  &  W.  Co.  689 

Debenture  Co.  v.  Hopkins  446 

Debinson  v.  Emmons  122 

Debs,  In  re  626,  665 

Decamp  v.  Dobbins  195 

De  Carriere  v.  De  Calonne       785,  786 

535 
144 
273 
727 
778 
597 
261,  526 
175 
157 
299 
Beach 

660 

73,  583,  603 

263 

100 

90 

707 

219 

466 

115 

81 

778 

469 

108 

641 


Dech's  Appeal 
Deck  V.  Tabler 
Decker  v.  Eisenhauer 

V.  Howell 
Dederer  v.  Voorhies 
Dedman  v.  Chiles 
Deeley  v.  Dwight 
Deering  v.  Boyle 
De  Everett  v.  Henry 
Deford  v.  Mercer 
De    Gray   v.    Monmouth 

Club  House  Co. 
Dehon  v.  Foster 
De  Hoghton  v.  Money 
De  Hourmelin  v.  Sheldon 
Deibert's  Appeal 
Deidrich  v.  Simmons 
De  Jarnette  v.  De  Jamette 
Delafield  v.  Barlow 
Delamater's  Estate 
Delamere's  Case 
Delaney  v.  O'Donnell 
De  Lancey  v.  The  Queen 
De  Laurencel  v.  De  Boom 
Del.  and  Md.  R.  Co.  v.  Stump 
Del.,  Lack.  &  W.  R.  R.  v.  Breck- 

enridge 
Del.,  Lack.  &  W.  R.  R.  v.  Cent. 

Stock  Yard  Co. 
Delaware  and  Raritan  Canal  v. 

Raritan  and  Delaware  Bay  R. 

Co. 
De  Lisle  v.  Priestman 
Dellinger's  Appeal 
Delmas  v.  Insurance  Co. 
De  Loughrey  v.  Hinds 
De  Manneville  v.  Crompton 


621 


577 


668 
526 
111 
547 
605 
395 


TABLE    OF    CASES. 


lix 


[The  references  are  to  the  pages.] 


De  Manneville    v.    De    Manne- 

ville  752 

Demarest  v.  Hardham  638 

V.  Terhune  188 

V.  Wynkoop    235,415,678 

De  Mestre  v.  West  396 

Demeter  v.  Wilcox  70 

Demmy's  Appeal  535 

Dempsey  v.  Bush  500 

Den  ex  dem.  Obert  v.  Bordine  89 

Den  V.  Brown  252 

V.  Hay  111 

Denechaud  v.  Berrey  174 

Deniston  v.  Hoagland  562 

Dennis  v.  Dennis  559 

V.  Echardt  638 

V.  Jones  404 

V.  North.  Pac.  Ry.  Co.       299 

V.  Williams  519 

Dennison  v.  Goehring       96,  121, 

144,  305 
540 
585 
53 
377 
650 
94,  786 
595 
634 
404 
236 


V.  Keasby 
Denny  v.  Fronheiser 

V.  McCown 
Densmore  v.  Densmore 
Dent  V.  Turpin 
Denton  v.  Denton 

V.  Jackson 

V.  Leddell 

V.  MacNeil 

V.  Nanny 

V.  Ontario  County  Nat. 

Bank  246 

V.  Stewart  566,  683 

Denver  &  N.  O.  Ry.  Co.  v.  A.,  T. 

&S.  F.  R.Co.  576 

De  Pauw  v.  Oxley  620 

De  Peyster  v.  Gould  135,  141 

Derby  v.  Derby  207 

Derby  Turnpike  Co.  v.  Parks         309 
De  Reimer  v.  Cantillon  298 

Dering  v.  Earl  of  Winchelsea  481,  482, 
484,  485,  487,  491,  493,  494 
Derr's  Estate  404 

Derry  v.  Peek  318,  320,  331,  333 

De  Ruvigne's  Case  379 

Desborough  v.  Harris  599 

Descarlett  v.  Dennett  287 

Desert  Nat.  Bank  v.  Dinwoodey     291 


Desilver's  Estate 

Des  Moines  Life  Ins.  Co.  v.  Sei- 

fert 
Desot  V.  Ross 
Detroit  B.  B.  C.  v.  Deppert 
Dettra  ik  Kestner 
Deuter  v.  Deuter 
Devausney,  In  re 
De  Veney  v.  Gallagher  619, 

Devenish  v.  Baines 
Devey  v.  Thornton 
Dewar  v.  Maitland 
V.  Whitney 
Dewhurst,  Ex  parte  517, 

Dewit  V.  Ackerman 
Dewitt  V.  Yates 
De  Witt  Wire  Cloth  Co.  v.  N.  J., 

etc.,  Co. 
De  Wolf  V.  Pratt 
De  Worms  (Baron)  v.  Miellier 
Dewy  V.  Field 
Dexter  v.  Arnold 
V.  Evans 

V.  Harvard  College      197, 
V.  MacDonakl 
Dey  V.  Dunham 
V.  Martin 
V.  Williams 
D'Eyncourt  i'.  Gregory 
Dezell  V.  Odell 
Dial's  Exr's  v.  Rogers 
Diamond  v.  Lawrence  County 
Diamond  M.  Co.  v.  Roeber     355, 
Diamond  Match  Co.  v.  Saginaw 

M.  Co. 
Diamond  State  Iron  Co.  v.  Todd 
Dick  V.  Doughton 
V.  Pitchford 
Dickenson  v.  Farley 

V.  Grand        Junction 

Canal  Co. 
V.  Stewart 
Dickerson's  Appeal 
Dickerson  v.  The  Commissioners 

V.  Stoll 
Dickey's  Appeal 
Dickey  v.  Thompson 
Dickinson  v.  Codwise  147, 

V.  Dickinson  459, 


359 

55 
494 
636 
316 
144 
758 
708 
313 
781 
454 
301 
720 
695 
746 

354 
565 
586 
435 
692 
126 
198 
62 
427 
586 
744 
699 
437 
691 
428 
663 

656 
544 
705 
101 
403 

661 
337 
116 
587 
708 
158 
489 
157 
719 


X 


Ix 


TABLE    OP   CASES. 


[The  references  are  to  the  pages.] 


Dickinson  v.  Overton 

745 

,746 

Dickson  /;.  Kempinsky 

360 

V.  Montgomery 

192 

,208 

V.  N.Y.  Biscuit  Co. 

460 

V.  Stewart 

552 

Dierks  v.  Comrs.  of  Highways 

634 

Diggs  V.  Wolcott 

604 

Digs  r.  Boys 

427 

Dike  i\  Green 

553 

Dikeman  v.  S.  Creek  Coal  Co 

.568 

,569 

Dill  V.  Shahan 

292 

V.  Wisner 

229 

Diller  v.  Brubaker 

372 

,528 

Dillett  V.  Kemble 

302 

Dillinger's  Appeal 

190 

Dillman  v.  Nadelhoffer 

732 

Dillon  V.  Coppin 

121 

Dills  V.  Doebler 

283 

Dilworth's  Appeal 

639 

Dilworth  v.  Bradner 

332 

V.  May  field 

717 

Diman  v.  Providence  R.  Co. 

300, 

302, 

402 

403 

Diinick  v.  Shaw 

623 

Dimmock  v.  Hallett 

325 

Dimond  v.  MacFarlane 

502 

Dingley  v.  Bon 

556 

Dinsmore  v.  Neresheimer 

73 

583 

Dinwiddle  v.  Bailey 

690 

V.  Self 

299 

Diplock  ('.  Hammond 

267 

Directors  of   Venezuela  Central 

R.  Co.  V.  Kisch 

324 

Disbrow  v.  Jones 

421 

Dismal  Swamp  Land  Co.  v. 

Ma- 

cauley 

52 

Distilled  Spirits,  The 

419 

Distillery  &  Cattle  Feeding  Co. 

V.  The  People 

355 

Dist.  Twp.  of  Grove  v.  Myles 

56 

Dixon  V.  Greene  Co. 

607 

V.  Holden 

647 

V.  Muckleston 

524 

V.  Saville 

99 

Dixon  Crucible  Co.  v.   Guggen- 

heim 

650, 

653 

Dize  I'.  Beacham 

502 

Doan  V.  Vestry 

77, 

215 

Doaae  v.  Dunham 

142 

Doane  v.  Lake  St.  R.  R.  Co.  635,  641 

V.  Russell  526 

Dobbin  v.  Cordiuer  449 

Dobbins  v.  Los  Angeles  58 

Dock  V.  Dock  546,  648,  764 

Dod  r.  Paul  300 

Dodd  V.  Flavell  582 

V.  Hartford  605 

V.  Levy  729 

V.  Seymour  552 

Dodge  V.  Davis  421 

V.  Griswold  729 

V.  Knowles  172 

V.  Lansing  Trac.  Co.  440 

V.  Pope  43S 

V.  Strong  586 

V.  Van      Buren      Circuit 

Judge  606 

V.  Woolsey  668 

Co.    V.    Construction    In- 
formation Co.  647 
Stationery  Co.  v.  Dodge      656 
Dodson  V.  Ball                     91,  94,  165 
Doe  v.  Cafe  112 
dem.  Cooper  v.  Finch  87 
V.  Doe                                        777 
V.  Dowdall                                  4:14 
V.  James                             392,  408 
V.  Lewis                                    394 
dem.  Lloyd  v.  Passingham        87 
Doebler's  Appeal                              556 
Doggett  V.  Hart                                 708 
Doherty  v.  Allman                   615,  663 
Dohnert's  Appeal                              599 
Dolan  (>.  McDermot                          208 
V.  Smith                                 708 
Dole  V.  Gear                                      186 
Dollar  Savings  Bank  v.  Bennett     137 
Dolliver  v.  DolUver                           362 
Doloret  v.  Rothschild                      540 
Dolphin  V.  Aylward                          391 
Domestic  Tel.  &  Teleph.  Co.  v. 

Metropolitan  Co.  542 

Dominick  v.  Michael  465 

Donahoe  v.  Conrahy  111 

Donald  v.  Suckling  528 

Donaldson  v.  Beckett  645 

V.  Donaldson  114,  115,  270 
V.  Gillot  316 


TABLE    OF    CASES. 


Ixi 


[The  references  are  to  the  pages.] 


Donaldson  v.  Williams 

280 

Douglass  11.  Wiggins 

616 

Doner  v.  Stauffer 

720 

,726 

Dowdall  V.  Cannedy 

327 

Donnell  v.  Mateer             692, 

694 

695 

Dowell  V.  Dew 

305 

Donnelly  v.  Johnes 

271 

V.  Goodwin 

586 

Donnington  v.  Mitchell 

180 

V.  Mitchell 

57 

Donnor  v.  Quartermas 

698 

,699 

Dowie  V.  Driscoll 

364 

Donoghiie  v.  ShuU 

386 

Dowling  V.  Betjemann 

544 

Donohugh's  Appeal 

198 

V.  Seattle 

266 

Donohugh  v.  The  Library  Co 

, 

197 

Downe  v.  Morris 

236 

Donovan  v.  Donovan 

320 

Downer  v.  The  Bank 

414 

V.  Miller 

586 

Downes  v.  Bennett 

58 

V.  Pennsylvania  Cc 

). 

621 

V.  Grazebrook 

159 

Dooley  v.  Watson 

286 

V.  Jennings 

395 

Doran  v.  McConlogue 

119 

Downham  (Geffry)  v.  Heylyn  ap 

Doren  v.  Robinson 

553 

Blethyn 

13 

Dormer  v.  Fortescue 

703 

Downs  V.  Collins 

712 

Dormitzer  v.  German,  etc.,  Soc. 

159 

I'.  Rickards 

160 

Dornmeel  v.  Ward 

731 

Dows  V.  Chicago 

605 

Dorr  V.  Shaw 

504 

V.  Durfee 

691 

Dorris  v.  Morrisdale  Coal  Co. 

17 

V.  Glaspel 

346 

Dorrow  v.  Kelly 

249 

Dowse  V.  Gorton 

486 

Dorset  (Duke  of)  v.  Girdler 

775 

Doyle  V.  Doyle 

186 

Dorsey  v.  Clarke 

137 

V.  Sleeper 

144 

V.  Dodson 

471 

V.  Whalen                        98 

202 

V.  Garey 

82 

214 

Dragoo  v.  Dragoo 

548 

Dorsey  Machine  Co.  v.  McCaffrey 

317 

Drake  v.  Glover 

449 

Dorsheimer  v.  Rorback 

736 

V.  Latham 

327 

Doty  V.  Judson 

299 

V.  Root 

234 

V.  Martin 

663 

V.  Wild                  104,  452 

,  459 

V.  Mitchell 

174 

Medicine  Co.  r.  Glessner 

649 

Dougan  v.  Bemis 

137 

Dransfield  v.  Dransfield 

785 

V.  Blocher 

561 

Drant  v.  Vause 

475 

V.  Macpherson 

372 

Draper  v.  Ashley 

493 

Doughady  v.  Crowell 

698 

Drayton  v.  Chandler 

246 

Dougherty  v.  Dougherty 

300 

Dresbach  v.  Minnis 

436 

V.  Jack 

393 

Dresel  v.  Jordan 

568 

V.  McColgan 

240 

Dresser  v.  Dresser                   126, 

128 

Dougherty   Bros.   v.  Cent. 

Nat. 

V.  Norwood 

419 

Bk. 

530 

Drew  V.  Hayne 

54 

Doughty  V.  Doughty 

586 

V.  Lockett 

491 

V.  Savage 

392 

V.  Wakefield 

152 

Douglas,  In  re 

197 

Dreyfus  v.  Peruvian  Guano  Co. 

773 

Douglas  V.  Douglas 

460 

Dringer  v.  Jewett 

403 

V.  Fargo 

605 

Drost  V.  Hall 

706 

Douglass  V.  Brice 

144 

Drown  v.  Ingels 

288 

V.  Fagg 

485 

V.  Smith 

616 

V.  Grant 

675 

Drum  V.  Stevens 

562 

V.  Martin 

54 

Drummond  v.  Pigou 

609 

V.  Russell 

257 

Drury  v.  Foster 

449 

Ixii 


TABLE    OF   <5^SES. 

r 

[The  references  are  to  the  pages.] 


Drury  v.  Inhabitants  of  Natick  197 

V.  Molins  664 

V.  Nantick  192 

Dryden  v.  Hanway  141 

Dubois  V.  Baum  568 

V.  Dubois  680 

V.  Hull  518 

l)\i  Bois  Boro.  v.  Water  Works  307 

Dubourg  (le  St.  Colombe's  Heirs 

;;.  United  States  687 

Dubowski  r.  Goldstein  353 

Dubs  V.  Dubs  99 

Duchess  of  Kingston's  Case  435,  436, 

450 

Ducktown  Sulphur  Co.  v.  Fain  594 


Duckworth  ''.  Jordan 
Ducommun's  Appeal 
Dudley  v.  Bachelder 

V.  Bosworth 

V.  Mayhew 

V.  Minor 
Dueber     Watch     Case 

Dougherty 
Dueber  Watch  Case  Man. 

Howard  Co. 
Duell  r.  Leslie 
Duerden  v.  Solomon 
Dufheld's  Appeal 
Duffield  V.  Hue 

V.  Rosenzweig 
Dufford  V.  Smith 
Duggan  V.  Slocum 
Du  Hourmelin  v.  Sheldon 
Duke  V.  Hague 
Duke  of  Ancaster  v 


462,  476 
227 
138 
145 
645 
321 


Co. 


Co. 


1'. 


X. 


63 


Mayer 


Beaufort  v. 

V. 
V. 

V. 

Bedford  v. 


Berty 
ColUer 
,  Glynn 
.  Neeld 
Trustees 


353 

244 

244 

167 

614,  622 

614 

220,  224 

212 

97,  468 

694 

487,  511, 

512,513 

753, 781 

167,  179 

590 


of 


British  Museum 
Bolton  V.  Williams 
Dorset  v.  Girdler 
Hamilton        v.        Lord 

Mohun 
Leeds  v.  The  Corponi- 

tion  of  New  Radnor 
Leeds  v.  Powell 


302 

662 
601 
775 

368 

70S 
708 


Duke  of  Marlborough   i'.   Godol- 
phin 
Norfolk's  Case 


Portland  v. 
Somerset  v. 


Topham 
Cookson 

276, 


Dulaney  v.  Scudder 

DuU's  Appeal  680, 

Dulles's  Estate 

Dumars  v.  City 

Dumfries  (Provost  of)  v.  Aber- 

crombrie 
Dummer  v.  Corp.  of  Chippenham 

V.  Pitcher 
Dumond  v.  Magee 
Dumont  v.  Dufore 
Dumpor's  Case 
Dvmavant  r.  Fields 
Dvmbar  v.  American  Tel.  Co. 
Duncan's  Appeal 
Duncan  r.  Duncan 

V.  Hayes 

V.  Lyon  480, 

V.  Railway  Co. 

V.  The  Iron  Works   623, 
Dunckel  v.  Dunckel 
Duncombe  v.  Richards 
Duncuft  V.  Albrecht 
Dundas's  Appeal 
Dundas's  Estate 
Dunklee  v.  Adams 
Dunkley  v.  Dunkley 
Dunklin  v.  Wilkins 
Dunlap  V.  Clements 

V.  Dunlap 

i\  Wilson 
Dunlop    Tyre    Co.     v.     Dunlop 

Motor  Co. 
Dunn  and  Biddle's  Appeal 
Dunn  V.  Chambers  340, 

V.  Michigan  Club 
V.  Stowers 
r.  Yakish 
Dunphy  v.  Kleinsmith 
Dunston  v.  Paterson 
Dupuy  V.  Johnson 
Duquesne  Bank's  Appeal 
Durant  i'.  Comegys 

V.  Smith  126, 


133 
211 

339 

540 
276 
776 
210 
605 

206 
765 
459 
186 
549 
100 
698 
355 
394 
459 
634 
586 
663 
660 
562 
360 
539 
161 
372 
287 
183 
263 
502 
511 
236 

656 
90 
370 
260 
557 
535 
729 
448 
488 
344 
569 
131 


TABLE    OF    CASES. 


Ixiii 


[The  references  are  to  the  pages.] 


Durant  v.  Williamson  633 

Durell  V.  Pritchard  577,  580 

Durfee  v.  Harper  541 

V.  Old  Colony  R.  Co.  668 

V.  Pavitt  140,  146 

Durham  v.  Presby  66 

V.  Wadlington  296 

Durham    Tobacco    Co.    v.  Am. 

Tobacco  Co.  656 

Durling  v.  Hammar  147 

Durr  V.  Bowyer  182,  185 

Dursley  v.  Fitzhardinge  775 

Dutcher  v.  Hobby  495 

Dutton's  Estate  261 

Dutton  V.  Dutton  190 

Duval  V.  McLoskey  204 

Duvall  V.  The  Farmers'  Bank         185 

D'Wolf  V.  Pratt  565 

Dwyer  v.  Cahill  216 

Dyar  v.  Walton  &  Co.  681 

Dyer  v.  Clark  717 

V.  Dyer  135,  136, 

142,  143,  145,  150 

V.  Riley  228 

r.  Shurtliff  160 

Dyett  V.  Central  Trust  Co.  175 

V.  North  Am.  Coal  Co.  174 

Dyke's  Estate,  In  re  304,  305 

Dyker  L.  &  I.  Co.  v.  Cook  555 

Dyott's  Appeal  222 

Dysart  v.  Crow  483 


Eachus  V.  Moss 
Eads  V.  Retherford 
Eagan  v.  Conway 
Eagle  V.  Franklin 


576 

481 

52 

695 


Eaglesfield   v.  Marquis  of   Lon- 
donderry 294 
Eakle  v.  Ingram  89 
Earl  V.  Halsey                                 224 
Earl  of  Aylesford  v.  Morris  341,  342, 

.343,    344 
Bath  V.  Sherwin  597 

Clarendon  v.  Hornby         697 
Egmont  V.  Smith  535 

Jersey  v.  Dock  Co.      520,  521 
Kildare  v.  Eustace         71,  S3 


Earl  of  Lucan,  In  re 
Oxford's  Case 


118,  545 

18,  582,  584, 

590 

Salisbury  v.  Cecil  764 

Sheffield  v.  London  Joint 

Stock  Bank  418,  423,  434 

Earl  Mexborough  v.  Bower  577 

Spencer  v.  Peek  775 

Earley's  Appeal  635 

Earlom  v.  Saunders  466,  468 

Early  v.  Friend  698 

Earp's  Appeal  90,  92 

East  &  West  R.  Co.  v.  E.  Tenn., 

Va.  &  Ga.  R.  Co.  667 

East  India  Co.  v.  Atkyns  239 

V.  Boddam    278,  280, 

281,    282 

East  Lewisburg  L.  &  M.  Co.  v. 

Marsh  266 

East  Retford   (Burgesses  of)  v. 

Thomas  De  Hercy  12,  579 

Easterly  v.  Keney  101 

Eastern  Milling  Co.  v.  Eastern 

Export  Co.  268 

Eastman  v.  Amoskeag  Co.  633 

V.  Palmer  340 

V.  Plumer  568 

V.  Provident  Assoc.  292 

Easton  v.  London,  etc..  Bank  446 
Eastwood  V.  Standard  Mines  Co.  440 
Eaton  V.  Barnes  107 

V.  Watts  129 

V.  Whitaker  563 

Ebbert's  Appeal  718 

Eberhardt  v.  Perolin  127 

Eberle  v.  Heaton  302 

Ebert  v.  Arends  287,  569 

Eberts  v.  Eberts  367 

Ebrand  v.  Dancer  144 

Echclkamp  v.  Schrader  620,  622 

Eckman  v.  Eckman  682,  778 

Eddowes,  In  re  133 

Edelman  v.  Latshaw  334,  539 

Edelsten  v.  Edelsten  650 

Edgar  v.  Donnelly  147 

Edge  v.  Worthington  524 

Edgington  v.  Fitzmaurice  320,  324 
Edison  Co.  v.  Edison  Co.  654,  655 

Edmonds's  Appeal  682 


Ixiv 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Edmonds  v.  Crenshaw  228 

Edmondson  v.  Dyson  96 

Etlmunds  v.  Crenshaw  428 

Edsell  V.  Nevins  778 

Edward  v.  Cheyne  181 

E  Iwards  v.  Applebee  538 

V.  Banksmith  428 

V.  Barstow  516 

V.  Burt  341 

V.  Culberson  154 

V.  Edwards        119,  139,  144 

V.  Graves  82 

V.  Haeger  620,  622 

r.  Jones  118,  167 

V.  Lowndes  82 

V.  Milledgeville    Water 

Co.  666 
V.  Parkhurst  265 
i\  Trumbull  525 
Edyall  v.  Hunston  12,  580 
Egbert  v.  Brooks  218 
Eg-  V.  Koontz  297 
V.  Wedlar  99 
E-4;:;rtoa  r.  Brownlow  95 
Eg:nont  (Earl  of)  v.  Smith  535 
I'l^hlcringer  v.  Moriarty  298 
Eib  V.  Martin  267 
Eichbaum  v.  Sample  539 
Einstein  r.  Bank  of  California         608 
Elaterite  Paint  Co.  7-.  Frost  610 
Elder  V.  Elder  559 
V.  Jones  263 
Eldridge  v.  Dexter  and  Piscata- 
quis R.  R.  Co.  285,  293 
V.  Eldridge  703,  704 
V.  Hill  594,  595 
V.  See  Yep  Company        111 
V.  Smith  158,  777 
Electric  Light  Co.  r.  Bates  376 
I'^lgin    Nat.    Watch    Co.    v.  III. 

Watch  Case  Co.  657,  658 

Elibank  v.  Montolieu  164,  182 

Eliot's  .\ppeal  197 

Eliot  V.  .Merchants'  Exch.  729 
I'^lk  Fork  Oil  &  Gas  Co.  v.  Foster  779 

I'^llcock  ('.  Mapp  151 

Ellenborough,  In  re  118 

i;ilicott  >•.  Kuhl  150 

I'^Hiot  V.  ElUot  368 


Elliot  V.  Merryman  431 

Elliotson  ('.  Feetham  639 

Elliott  V.  .\rmstrong  135,  142 

V.  Carter  511,  513 

V.  Fisher  468 

V.  Ins.  Co.  440 

V.  Pool  223 

Elliott's  Ex'rs'  Appeal  270,  388 

EUis's  Appeal  418 

Ellis  V.  Davis  54,  313 

V.  Ellis  126,  561 

V.  Fairbanks  489 

r.  Feist  695 

r.  Hill  695 

V.  Lewis  455 

V.  Musselman  385 

V.  Nimmo  121 

V.  Selby  208 

V.  Southwestern   Land  Co. 

62, 487 


518 

784 

620 

237 

115,  117,  383, 

386, 392, 393 

.302 

60,  692 

136 

227,  608 

145 


r.  Temple 
V.  Water  Co. 
V.  Wren 
Ellison  V.  Daniels 
V.  Ellison 

V.  Fox 
V.  Moffatt 
Ellsworth  ?•.  M.  T.  Ames  Co. 
Elmendorf  i\  Lansing 
Elrod  1'.  Cochran 

?'.  Lancaster  223 

Elwell  V.  Chamberlin          '  336 

Elwes  V.  Mawe  616 

Elwood  V.  Deifendorf  497 

El\vyn's,\ppeal  264 

Ely  (Bishop  of)  v.  Kenrick  708 

Emeric  (•.  Alvarado  422,  427 

Emerson  v.  Atwater  244 

V.  Davies  646 

V.  Hall  264 

V.  Schwindt  555 

Emery  v.  Lawrence  257 

Emmanuel  Coll.  v.  Evans  233 

Emmons  r.  Barton  263 

V.  Cairns  773 

Emperor  of  Austria  v.  Day      651,  669 

Employing    Printers'   Club   v. 

Doctor  Blossner  Co.  354 


TABLE    OF    CASES. 


Ixv 


[The  references  are  to  the  pages.] 


Engberry  v.  Rousseau 

550 

Eureka  &  K.  R.  R.  Co.  v.  Cal.  & 

England  v.  Curling 

712 

N.Ry.Co. 

594 

V.  Downs 

394,  395 

396 

Evangelical  Assoc. 's  Appeal 

196 

r.  Reynolds 

120 

Evans's  Appeal 

404 

470 

Englar  v.  Offutt 

149 

(Mary)  Estate 

227 

English  V.  Lindley 

414 

Evans  v.  Bagshaw 

696 

English  «fe  Scottish  Merc.  Co.  v. 

V.  Bicknell 

311 

314 

Brunton                    69 

270, 422 

424 

V.  Coventry 

780 

781 

Ennor  v.  Hodson 

147 

174 

V.  Duke 

404 

Enos  V.  Hunter 

142 

V.  Duncan 

502 

V.  Stewart 

62 

V.  Evans 

189 

Ensign  v.  Colburn 

617 

V.  Gillespie 

167 

Ensley  v.  Ensley 

127 

128 

V.  Goodlet 

519 

V.  McWiUiams 

605 

V.  Kimbell 

252 

Episcopal  Academy  v. 

Philadel- 

V.  Kittrell 

549 

phia 

198 

V.  Knorr 

167 

Epley  V.  Witherow 

439 

V.  Llewellyn 

296 

Epperson  v.  Bluthenthal 

652 

V.  Mo.,    la.    &   Neb. 

Ry 

667 

Equitable  Gas  Light  Cc 

>.  V.  Bait. 

V.  Peacock 

342 

.343 

Coal  Tar  Co. 

554 

V.  Reading  Chemical 

Co. 

632 

Equitable  Loan  Co  v.  Lewman 

450 

V.  Thompson 

244 

Equitable  Mortgage  Co 

V.  Lowe 

501 

Evarts  v.  Steger 

300 

Trust  Co.  V. 

Garis 

540, 

Everett   Waddey   Co.    v.   Rich- 

541,758 

769 

mond  Union 

628 

V. 

Donahue 

605 

Everitt  v.  Everitt 

363 

Erb's  Appeal 

485, 

499 

Everts  v.  Agnes 

563 

Erdman  x\  Mitchell 

628 

Evertson  v.  Booth 

503 

Erhardt  v.  Boaro 

660 

V.  Tappen 

156 

Erickson  v.  First  Nat. 

Bank  of 

V.  The  Central  Bank 

495 

Oakland 

659 

Ewart  V.  Nave-McCord  Co. 

721 

V.  Inman 

268 

Ewell  V.  Greenwood 

625 

V.  Willard 

126, 

128 

V.  Tidwell 

312 

Erie    City   Iron    Works  v.    Bar- 

Ewer V.  Hobbs 

234 

ber 

331 

Ewertsen  v.  Gerstenberg 

662 

Erlanger  v.  New  Sombrero  Phos- 

Ewing's Appeal 

549 

phate  Co. 

377 

Ewing  V.  Litchfield 

283 

553 

Erskine's  Trusts 

183 

V.  Smith 

173 

176 

Ervin's  Appeal 

579, 

659 

Ewins  V.  Gordon 

536 

551 

Erwin  r.  Parham 

339, 

547 

Exchange  Bank  v.  McLoon 

265 

Eshbach's  Estate 

116 

V.  Russell 

402 

Eshlcman  v.  Lewis 

147 

Exchange  Tel.  Co.  v.  Gregory 

647 

Espert  V.  Wilson 

551 

Exel  V.  Wallace 

96 

Espy  17.  Conier 

718 

Exeter  v.  Odiorne 

95 

Esron  v.  Nicholas 

450 

Express  Co.  v.  Walker 

419 

Essex  V.  Essex 

712 

Exter  V.  Sawyer 

377 

Estate  of  Pforr 

475 

Eyre  v.  Countess  of  Shaftsbury 

Estis  V.  Jackson 

446 

749,  750, 

751, 

755 

Euans  v.  Curtis 

144 

V.  McDowell 

270 

Eudora  Co.  v.  Barclay 

521 

V.  Potter 

340 

IT, 


Ixvi 


TABLE   OF   CASES. 


[The  references  are  to  the  pages.] 


Fabrique  v.  Mining  Co.  242 

Factors  and  Traders'  Ins.  Co.  v. 

Murphy  602 

Kahy  v.  Cavanagh  555 

Fairbanks  v.  Lamson  199 

V.  Snow  362 

t'.  Welshaus  268 

Fairbrother  v.  Shaw  563 

Fairchild  v.  McMahon  323 

Fair's  Estate  93 

Fairfield  v.  Southport  Nat.  Bank  593 
Fairthome  v.  Weston  713 

Falcke  v.  Gray  540,  547 

V.  Scottish  Co.  488 

Fales  V.  Russell  280 

Falk  V.  Turner  363 

Fall  r.  Elkins  696 

Fall  River  Whaling  Co.  v.  Borden 

718,  720 

Fallon  V.  Mc.\lonen  188 

7-.  Railroad  Co.  540,  553 

Fame  Ins.  Co.'s  Appeal  487 

Fanning  v.  Dunham  67,  344 

Faribault  v.  Sater  323 

Faries'  Appeal  99,  180 

Farina  v.  Silverlock  650 

Faringer  v.  Ramsay  142 

Faris  v.  Dunn  142 

Farley  r.  Blood  597 

Farmer  v.  Farmer  367 

V.  Russell  66,  391 

Farmers'  Bank  v.  Groves  317 

&  Dr.  Bank  v.  Fordyce  298 

Fire  Ins.  Co.  x>.  Baker  442 

L.  &  T.  Co.  V.  Grape 

Creek  Coal  Co.  784 

Loan    &    Tr.    Co.    v. 

North.  Pac.  R.  R.  Co.  577 
&  Mech.  Bk.  v.  Anthony  504 
&  Mech.   Bk.   v.   King 

147,  149 
&    Mech.    Ins.    Co.    v. 

Simmons  268 

&  Merchants'  Bank  v. 

Farwell  62 

&    Traders'     Bank    i'. 

Milling  Co.  147 

Nat.  Bank  v.  Sperling  421 


Farmers'  R.  Co.  v.  The  Reno  Oil 
Creek  and  Pit  Hole 
R.  Co.  577 

Savings  Assoc,  v.  Kent  489 
Farmington  Sav.  Bank  v.  Curran  460 
Farmington  Vill.  Corp.  v.  Bank  682 
Farnam  v.  Brooks  316 

Farnham  v.  Campbell  778 

V.  Clements  138 

Famsworth  v.  Childs  426 

V.  Strasler  729 

Famum  v.  Burnett  251 

V.  Metcalf  236 

Farquhar  v.  Darling,  In  re  Dar- 
ling 196 
Farr  v.  Farr                                     316 
Farrand   v.   Yorkshire   Banking 

Co.  70,  274,  275,  414,  525 

Farrant  v.  Lovel  617 

Farrar  v.  Bemheim  390 

V.  Farrars  (Lim'd) 

159,  373,  377 

V.  Hazelden  736 

Farrell  v.  Cook  632 

V.  Lloyd  141,  142 

Farrington  v.  Knightly  82 

Farris  v.  Ware  310 

Farson  v.  Fogg  571 

Farwell  v.  Colonial  Trust  Co.  58 

V.  Cotting  703,  704 

V.  Gr.  West.  Tel.  Co.         404 

V.  Huston  720 

V.  Kloman  150 

Fassett  v.  Traber  488 

Fatheree  v.  Fletcher  144 

Faucett  v.  Currier  325 

Faulk  V.  Calloway  496 

Faulkner  v.  Davis  755 

V.  Hendy  148 

V.  Klamp  320 

Faure  Electr.  Accum.  Co.,  In  re 

222,  373 
Faurot  v.  Gates  483 

Fausler  v.  Jones  142 

Faust  V.  Haas  326 

V.  Hosford  316,  317 

Faveaux,  In  re  196 

Favill  1-.  Roberts  442 

Fawcett  &  Holmes'  Contract         565 


TABLE    OF   CASES. 


Ixvii 


[The  references  are  to  the  pages.] 


Faxon  v.  Folvey  108 

Fay  V.  Howe  192 

Fayre weather  Will  Case  313 

Fay  lor  v.  Fay  lor  138 

Fears  ?;.  Brooks  166,  168,  175 
Federal  Oil  Co.  v.  Western  Oil 

Co.  549 

Fee  V.  Sharke  537 

Fehx  V.  Rankin  698 

Fell  V.  Brown  236 

Fellows  V.  Greenleaf  120 

V.  Loomis  157 

V.  Smith  370 

V.  Tann  179 

Feltham  v.  Clark  271 

Felton  V.  Ackerman  784 

Felty  V.  Calhoon  553 

Fennell's  Estate  188 

Fennings  v.  Humphrey  592 

Fenwick  i>.  Bulman  537 

V.  Potts  524 

Ferchen  v.  Aradt  150 

Ferebee  v.  Pritchard  394 

Feret  v.  Hill  327 

Ferguson's  Appeal  634,  635 

Ferguson  v.  Ferguson  292 

V.  Fisk  582,  659,  680 

V.  Paschall  539 

Fernie  v.  Young  633 

Ferns  v.  Chapman  368 

Ferran's  Estate  267 

Ferrell  v.  Ferrell  302 

Ferrin  v.  Errol  590 

Ferris  v.  Am.  Brewing  Co.  663 

V.  Burton  481 

V.  Henderson  316 

V.  Mullins  524 

Ferson  v.  Sanger  52,  302,  405 

Fesmire's  Estate  226 

Fesmire  v.  Shannon  227 

Fessenden  v.  Taft  137 

Fessler's  Appeal  244 

Fessler  v.  Hickernell  497,  504 

Festorazzi  v.  St.  Joseph's  Cath. 

Church  192 

Fettiplace  v.  Gorges  169 

Fidehty  Co.  v.  Jordan  493 

V.  Roanoke  Co.  784 

V.  Sturtevant  Co.        261 


Fidehty  Ins.  Co.'s  Appeal         90,  776 
Ins.,  etc.,  Co.  v.  Moore 

17,  142 
Mut.  L.  I.  Co.  V.  Clark     411 
Title  &  Tr.  Co.  v.  Peo- 
ple's Nat.  Gas  Co.  490 
Fidler  v.  John  383 
Field  V.  Magaw  267 
V.  Mayor  of  New  York  257,  265 
V.  Wilson                                 316 
Fields  V.  Squires                               539 
V.  Stokley                              630 
Filker  v.  Mowry                                 292 
Filkins  v.  Severn  110 
Filler  v.  Tyler  172 
Filley  v.  Fassett                               651 
Fillman  v.  Divers                              147 
Finch's  (Moyle)  Case  83 
Finch  V.  Parker                                549 
V.  Resbridger                         777 
V.  Shaw                          413,  706 
V.  Winchelsea                        430 
V.  Woods                                427 
Finck  V.  Granite  Co.                         354 
Findlay  v.  Hosmer                  502,  506 
V.  Keim                                 534 
Fine    Cotton    Spinner    Ass'n    v. 

Harwood  655 

Findley  v.  Koch  548 

Finegan  ik  Theisen  365,  373 

Fink  1'.  Farmers'  Bank  297 

V.  Mahaffy  499 

Finlayson  v.  Crooks  251 

Finlen  v.  Heinze  552 

Finley  v.  Aiken  535,  542,  548 

Fire  Ins.  Patrol  v.  Boyd  201 

Firemen's  Ins.  Co.  v.  Powell  290 

First  Baptist  Church  v.  Syms        586 
First  Nat.  Bank  v.  Bache  147 

V.  Campbell  140 

V.  Clark  268 

V.  Dubuque  268 

V.  Gustin     Min- 
ing Co.  733 
V.  Leech        147,  410 
V.  Perris   Irriga- 
tion Dist.       273 
V.  School      Dis- 
trict              259 


Ixviii 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


First  Nat.  Bank  v.  State  264 

V.  Wyman  507 

First  Nat.  Bank  of    Freehold    v. 

Thompson    496 
of  Rock  Springs 

V.  Roder       502 
of  Shreveport  v. 

Randall        731 

Fischer  v.  Blank  649 

V.  Riehl  688 

V.  Woodruff  496 

FischH  V.  Fischli  186 

Fish  V.  Cleland  327,  368 

V.  Dodge  638 

V.  Fish  374 

V.  Rowland  520 

V.  Leser  550 

V.  Miller  368 

Fishburne  v.  Ferguson  359 

Fishel  V.  Goddard  157 

Fisher  v.  Boody  405 

V.  Brown  528 

V.  Budlong  328 

V.  Fields  111,  112 

V.  Filbert  188 

V.  Green  243 

V.  Koontz  397 

V.  Mellen  331 

V.  Moolick  571 

V.  Taylor  101 

F^isk  V.  Gray  284 

V.  Sarber  160,  223 

Fitch  V.  Fitch  341 

V.  Weber  ^        472 

Fitts  V.  Grocery  Co.  69 

Fitzgerald,  Ex  parte  757 

Fitzgerald  v.  Vestal  257 

Fitzpatrick  v.  Featherstone  554,  555 

Fitzsimmons  v.  Joslin  336 

r.  Ogden  412 

Flaccus  V.  Smith  57,  629 

Flagg  V.  Mann  243,  416, 

422,  427,  706 
Mf:;.  Co.  v.  Holway  650 

Flanagan  Bank  v.  Graham  261 

Flanders  v.  Blandy  116,  123 

Flannery  v.  Coleman  390 

V.  Jor\es  325 

Flarty  v.  Odium  264 


Flavel  V.  Harrison  652 
Fleischner  v.  Bank  of  McMinn- 

ville  732 

Fleishman  v.  Woods  539 

Fleming's  Estate  452 

Fleming  v.  Beaver  493 

V.  Burgin  427 

V.  Donahoe  106 

V.  Hislop  633,  639 

V.  McHale  402 

V.  Mershon  605 

V.  Peterson  773 

;;.  Snook  662 

Fletcher  v.  Ashburner  463,  467, 

471, 477 

V.  Bartlett  373 

V.  Grover  482 

V.  Holmes  234,  440 

V.  Peck  414,  415 

V.  Tuttle        58,  74,  382,  669 

Flight  V.  Bolland  551 

V.  Cook  773 

FUnn  V.  Bagley  379 

Flitcraft  v.  Ins.  Co.  420 

Flitcroft's  Case  373 

Florence  Sewing  Machine  Co.  v. 

Ziegler  383,  416 

Florida  v.  Morrison  331,  521 

Flory  V.  Houck  386,  563 

Flower  v.  Flower  189 

Floyd  V.  Jayne  587 

Flynn,  In  re  752 

Fogarty  v.  Sawyer  234 

Foley's  Will,  In  re  127,  131 

Foley  V.  Grand  Hotel  Co.  288 

V.  Hill  690 

V.  Kirk  680 

Foil's  Appeal  540,  549 

Follansbe  v.  Kilbreth  137,  147 
Follansbee  v.  Scottish-Am.  Mfg. 

Co.  583 

Follett  V.  Tyall  99 

Folsom  V.  Harr  552 

V.  Marsh  646,  648 

V.  McCague  51 
Fontain  v.  Ravenel         192,  206,  210 

Foot  V.  Ketchum  481 

Foote  V.  Nickerson  190 

Forbes  v.  Adams  477 


TABLE    OF   CASES. 


IXIX 


[The  references  are  to  the  pages.] 


Force  v.  Age-Herald  Co. 

667 

Fostei 

•  V.  Clark 

298 

V.  City  of  Elizabeth 

56 

V.  Johnson 

482 

Ford  V.  Burleigh 

620 

V.  Reynolds 

250 

V.  Dangerfield 

152 

V.  Swasey 

54 

V.  Daniells 

300 

V.  I'rustees 

140 

V.  Easthampton       Rubber 

V.  Willson 

126 

,  129 

Thread  Co. 

120 

V.  Winchester 

66 

V.  Fellows 

446 

V.  Wood 

586 

V.  Ford 

119 

,466 

Fothergill  xk  Rowland 

662 

V.  Foster 

652 

Foultz  Co.  V.  Foultz  Co. 

655 

V.  Fowler 

128 

Fourth  St.  Bank  v.  Yardley 

265, 

268, 

V.  Gamer 

267 

516 

V.  Hill 

586 

Fouse 

V.  Gilfillan 

423 

V.  Lewis 

141 

Foust 

V.  Moorman 

695 

V.  Olden 

374 

Fowle 

V.  Lawrason 

688 

689 

V.  Stuart 

266 

V.  Park 

356 

V.  White 

414 

426 

Fowler's  Appeal 

390 

736 

V.  Williams 

439 

Trust,  In  re 

457 

458 

Fordyce  v.  Bridges 

132 

Fowle 

r  ^^.  Bellinger 

480 

V.  Library  Ass'n 

198 

V.  Bott 

279 

V.  Willis 

106 

V.  Fowler             537 

674 

676 

Foreman  v.  Bigelow 

379 

V.  Loomis 

658 

Forman  v.  Brewer 

62 

V.  Maus 

493 

Forest  Oil  Co.'s  Appeal 

39 

490 

V.  Sands 

536 

Forester  v.  Van  Auken 

301 

Fox's . 

Appeal 

128 

Forget  V.  Ostigny 

346 

Fox  Co.  V.  Hathaway 

653 

Forrer  v.  Nash 

557 

Fox  V. 

Davis 

190 

Forrest  v.  Forrest  116,  144 

V.  Prescott  512 

Forrest  of  Dean  Coal  Mining  Co., 

In  re  373 

Forrestel  v.  Forrestel  369 

Forrester  v.  Flores  563 

Forsbrook  v.  Forsbrook  774 

Forster  v.  Hale  107,  108 

Forsyth  v.  Forsyth  467 

Fortescue  v.  Barnett  118 

V.  Lostwithiel  &  Fow- 

ey  Ry.  Co.  554 

Forthman  v.  Deters  252 

Fort  Smith  Milling  Co.  v.  Mikles     305 
Fortunato  v.  Patten  272 

Fosdick  V.  Hempstead  207 

V.  Schall  68,  207,  507, 

508,  509 
Foss  V.  Harbottle  377 

Foster's  Appeal  463,  469,  717 

Foster  Lumber  Co.  v.  Bank  525 

FQster  V.  Barnes  716 


V.  Heffner  137 

V.  Mackreth     159,  224,  365,  372, 

377,  378 

V.  Wharton  238 

Fraim  v.  Frederick  416 

Fraker  v.  Brazelton  557 

Fralich  v.  Despar  611 

Frampton  v.  Frampton  190 

Francis  v.  Francis  518 

V.  Lawrence  732 

V.  Porter  234 

V.  Wells  519 

V.  Wilkinson  368 

Frank's  Appeal  1 38,  156,  379 

Frank  v.  Basnett  592 

V.  Herold  628 

Franke  v.  Mann  667 

Frankel  v.  Frankel  608 

Franklin's  Estate  152,  215 

Franklin  v.  Ayer  243 

Franklin  Ins.  Co.  v.  McCrea  52 

Mining  Co.  v.  O'Brien     157 


Ixx 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Franklin  Savings  Bank  v.  Taylor  424 

Frenzel  v.  Miller 

328 

Tel.  Co.  V.  Harrison  549 

554 

Frewin  v.  Lewis 

624 

Franklyn  v.  Tuton 

660 

Frey  v.  Demarest 

736 

Franks  v.  Bollans 

468 

Freyvogle  v.  Hughes 

92 

179 

Frantz  i\  Autry 

608 

Fricke  v.  Safe  Dep.  Co. 

59 

V.  Brown 

479 

Fricker  v.  Americus  Mfg. 

Co 

156 

Frary  ik  Booth 

175 

Fridley  v.  Somerville 

244 

Frasch,  In  re 

506 

Friend  v.  Lamb 

545 

549 

Frayne  v.  Taylor 

467 

Frierson  v.  Gen.  Assemb. 

Presby. 

Frazier's  Trustees  v.  Center 

173 

Church 

193 

Frazier  v.  Brownlow 

175 

Frisbee's  Appeal 

688 

V.  St.  Luke's  Church 

216 

Fritch  V.  Bank 

248 

484 

498 

Frederick's  Appeal 

117 

Frith  1'.  Cartland 

148 

219 

Frederick  v.  Haas 

140 

142 

V.  Forbes 

517 

Frederick  (Mayor  of)  v.  Groshon 

622 

Frizzle  v.  Patrick 

633 

Fredericks  v.  Huber 

577 

Froelicher  v.  Oswald  Iron  Works 

632 

Fred  Macey  Co.  v.  Macey 

- 

Frost  11.  Beekman 

416 

310, 

313 

377 

V.  Libby 

731 

735 

Freedley  v.  Jacoby 

346 

V.  Spitley 

777 

Freeburgh  v.  Lamoreux 

552 

V.  Thomas 

607 

613 

Freedland  v.  Cocke 

692 

Frothingham  v.  Stacker 

427 

V.  Dazey 

736 

Frue  V.  Houghton 

539 

Freedley's  Appeal 

111 

Fry  V.  Lane 

341 

360 

Freeman  v.  Cooke 

446 

Frye  v.  Partridge 

663 

V.  Curtis 

292 

296 

Fudge  V.  Payne 

674 

V.  Dwiggins 

361 

Fulham  v.  McCarthy 

363 

373 

V.  Fairlie 

230 

764 

Fulkerson  v.  Taylor 

493 

V.  Freeman       166, 

356 

562 

Fuller  V.  Abbe 

225 

V.  Hartman 

394 

V.  Buice 

681 

V.  Lomas 

480 

Fullington  v.  Kyle  Lumber  Co. 

353 

V.  Pope 

383 

386 

FuUwood  V.  FuUwood 

61 

V.  Poutrell 

13 

Fulton's  Appeal 

482 

V.  Stuart 

732 

782 

Fulton  V.  Colwell 

674 

Freeman's  Settlement  Trusts,  In 

V.  Loftis 

362 

re 

224 

V.  Miller 

694 

698 

Freemans  ;;.  Ammons 

660 

V.  Moore 

459 

Freer  v.  Davis 

660 

768 

Funston  v.  Twining 

122 

123 

Freiberg  v.  Stoddard 

150 

Furber  v.  Page 

137 

Fremont  c.  Boling 

604 

French  v.  Boston  Nat.  Bank 

552 

a 

V.  Burns 

244 

vr. 

V.  French 

93 

Gable  v.  Columbus  Cigar 

Co 

383 

V.  Griffin 

322 

V.  Daub 

452 

V.  Loyal  Company 

428 

Gadsden  v.  Brown 

498 

V.  Macale 

286 

Gage  V.  Fisher 

358 

V.  Pittsburg  Vehicle  Co. 

159 

V.  Gates 

176 

V.  Waterman 

.176 

V.  Griffin 

777 

V.  Westgate 

132 

?'.  Schmidt 

777 

V.  Woodruff 

62, 

159 

Gaines  v.  Brockerhoff 

244 

T 

WBLE    OF   CASES. 

Ixxi 

[The  references  are  to  the  pages.] 

Gaines  v.  Chew 

312 

Garner  v.  Lyles 

736 

i;.  New  Orleans  (City 

of) 

Garnett  v.  Acton 

467 

407 

690 

V.  Macon 

513 

V.  Summers 

138 

Garnham  v.  Skipper 

524 

Gaither  v.  Gaither 

313 

Garnsey  v.  Mundy 

119 

Galbraith  v.  Elder 

156 

157 

Garrard  v.  Lord  Lauderdale  119 

120 

V.  Galbraith 

136 

Garratt  v.  Lynch 

280 

V.  Lunsford 

449 

Garretson  v.  Cole 

577 

V.  McLaughlin 

340 

Garrett  v.  Kansas  City  Coal  Min- 

Gale  V.  Abbott 

575 

578 

ing  Co. 

340 

V.  Kalamazoo 

353 

V.  Goff 

566 

Gallagher  v.  Fayette  County 

R. 

V.  Mining  Co. 

550 

R.  Co. 

54 

V.  Rutherford 

108 

V.  Northrup 

421 

V.  White 

695 

Galland  v.  Galland 

186 

V.  Wilkinson 

145 

Gallatain  v.  Cunningham 

367 

Garrison  i'.  Technic.  Elec.  Works 

Gallego's  Ex'rs  v.  Attorney-C 

jien- 

334, 

335 

eral 

192 

206 

Garside  v.  Norval 

727 

Galliher  v.  Cadwell 

61 

Garson  v.  Green                         518 

521 

Galloway  v.  Finley 

519 

Garst  V.  Charles 

625 

Galush  V.  Sherman 

361 

Garth  v.  Sir  John  Hind  Cotton 

618 

Galusha  v.  Galusha 

190 

V.  Townsend 

304 

Galveston  R.  Co.  v.  Cowdrey 

247 

261 

Garvey  v.  Refractories  Co. 

58 

Galvin  v.  Britton 

449 

Garvin  v.  Williams 

368 

Gambell  v.  Trippe 

210 

Garwood  v.  Garwood 

426 

Gamble  v.  Loop 

778 

Gary  v.  Newton 

548 

Gamewell  Fire  Alarm  Tel.  C-o.  v. 

Gas  Company  v.  Broadbent 

634 

Crane 

351 

Gaskell  v.  Gaskell 

694 

Gammill  v.  Johnson 

334 

Gas  Light  &  Coke  Co.  v.  Towse 

549 

Gandy  v.  Fortner 

263 

778 

Gass's  Appeal 

667 

Gannett  v.  Albree 

65 

Gass  V.  Gass 

135 

Gano  V.  Gilruth 

705 

V.  Wilhite 

199 

Ga.  Nor.  Ry.  Co.  v.  Tifton 

668 

Gates  V.  Detroit  Ry.  Co. 

578 

Gantt  V.  Amer.  Cent.  Ins.  Co 

487 

V.  Jacob 

235 

Garber  v.  Bresee 

321 

V.  Johnston  Lumber  Co. 

621 

V.  Henry 

250 

V.  Paul 

52 

Gard  v.  Gard 

53 

522 

Gatling  v.  Newell 

311 

Gardiner  v.  Dering 

616 

Gaty  V.  Holcomb 

322 

Gardner  v.  Adams 

263 

Gauche  v.  Milbrath 

479 

V.  Gardner 

174 

Gaunt  I'.  Fynney                      632 

,638 

V.  Hooper 

182 

Gause  v.  Hale 

97 

V.  Knight 

327 

V.  Perkins 

621 

V.  Lachlan 

259 

Gavigan  v.  Refining  Co 

637 

V.  Newburgh 

634 

Gay,  Estate  of 

195 

Garesche  v.  Levering  Inv.  Co 

218 

Gay  V.  Adams 

299 

Garforth  ik  Bradley 

183 

V.  Gay 

481 

Garland  v.  Harrington 

257 

Gaylord  v.  La  Fayette 

95 

V.  Smith 

313 

Gay  Mfg.  Co.  v.  Camp 

284 

Garner  v.  Garner 

96 

,296 

Gearhart  v.  Jordan                   490 

,494 

Ixxii 


tablf:  of  cases. 


[The  references  are  to  the  pages.] 


Geddes's  Appeal  680,  718 

Geddes  v.  Pennington  335 

Gee  V.  McMillan  519 

V.  Pritchard  648 

Geffry  Downham  v.  Heylyn  ap 

Blethyn  13 

Geiler  v.  Littlefield  448 

Geishaker  v.  Pancoast  428,  429 

Geist's  Appeal  267 

Gemmel  iJ.  Fletcher  338 

Cieiieral  Estate's  Company,  In  re  273 
Genet  v.  Beekman  102 

Gentry  v.  Lanneau  387 

V.  McReynolds  187 

George  (Matter  of)  114 

George  v.  Cleveland  607 

V.  Kent  423 

V.  Peckham  641 

V.  Wood  426,  485,  489 

Georgetown  (City  of)  v.  Alexan- 
dria Canal  Co.  625,  626 
Georgia  So.  R.  R.  Co.  v.  Merc. 

Tr.  &  Dep.  Co.  262 

Gerber  v.  Upton  495,  563 

(ierdhardt  v.  Ellis  238 

Gerdine  v.  Menage  495 

Gerke  v.  Purcell  198 

German  v.  Chapman  663 

German    All.    Ins.    Co.    v.    Van 

Cleave  595 

German-Am.  Tit.  Ins.  &  Tr.  Co. 

V.  Shallcross  25 

German  Bank  v.  United  States      498 
German  Nat.  Bank  v.  First  Nat. 

Bank  729 

German  Sav.  Bank  v.  Geneser         301 
Germania    Iron    Co.    r.    United 

States  298 

Germantown    Pass.    Ry.   Co.    v. 

Fitler  60,  287 

Gerner  v.  Mosher  332 

Gerrad  v.  Boden  256 

Gerry  v.  Stimson  107,137 

Gest  V.  Packwood  253 

Getchell  v.  Bank  114 

Getman's  Exr's  v.  Beardsley  307 

Getz  V.  Federal  Salt  Co.  351 

Ghormloy  v.  Smith  101 

Gibbes  v.  Cobb  426 


Gibbes  v.  N.  Y.  Life  Ins.  Co.  363 

Gibbler  v.  Trimble  412 

Gibbons  v.  Hoag  405 

Gibbs  V.  Baltimore  Gas  Co.  356 

V.  Harding  189 

V.  Marsh  132 

V.  McNeeley  356 

Gibson  v.  Amer.  L.  &  T.  Co.         583 

V.  Brown  557 

V.  Crehore  704 

V.  Foote  137,  138 

V.  Goldsmid  538 

V.  Hammang  369 

V.  Herriott  61,  68 

V.  Jeyes  366,  756 

V.  Rees  120 

Giffard  v.  Williams  695 

Giffea  v.  Taylor  162,  338 

Gifford  V.  Carvill  323 

V.  New    Jersey    R.    Co. 

(The)  668 

V.  Thorn  340 

Gihon's  Estate  450 

Gilbert  v.  Chapin  126 

V.  Colt  785 

V.  Groff  447 

V.  Hewetson  157 

V.  Lewis  167 

Gilchrist  v.  Stevenson  116 

Gilcrest  v.  Des  Moines  626 

Gile  IK  Dunbar  552 

Giles  V.  Anslow  130 

V.  Harris  58 

Gill  V.  Ferris  663 

V.  McAttee  427 

V.  Pelkey  290 

V.  United  States  440 

Gillespie  v.  Burleson  168 

V.  Holland  366 
V.  Moon     400,  401,  559,  676 

Gillett  V.  Bate  730 

V.  Romig  238 

Gillette  v.  Murphy  266 

Gilliam  v.  McCormack  501,  504 

Gilliland  v.  Inabnit  71 

Gillis  V.  Hall  544 
Gillott  V.  Esterbrook       651,  654,  658 

Gilnian  v.  Bell  730 

I'.  Brown  520 


Table  op  cases. 


Ixxiii 


[The  references  are  to  the  pages.] 


Gilman  v.  Hamilton 

V.  111.   &  Miss.  Tel. 

V.  Wills 
Gilmor's  Estate 
CJilpatrick  v.  Glidden 
Gilroy's  Appeal 
Gins  V.  Coffinberry 
Gira  v.  Harris 
Giragosian  v.  Chutjiam 


Co 


207 
247 
248 
116 
313, 337 

56 
542 
552 

59 


(iirard  v.  Philadelphia  211,  215,  774 
Ciirard  Co.  v.  Cooper  64 

Girard  Life  Ins.  Co.'s  Appeal  467,  468 
(iirard  Life  Ins.  Co.  v.  Chambers  101 
( ;  i  ra  rd  Trust  v.  Mel  lor  110,114 

Girard  Trust   Co.   v.   Avonmore 

Land  Co.  246 

Gish  V.  Jamison  549 

Gist,  In  re  7.59 

Given's  Appeal  583,  586 

Gladding  v.  Church  208 

Gladstone  v.  Birley  515 

Glamorgan    Coal    Co.    v.    South 

Wales  Miners'  Federation  629 

Glascott  r.  Lang  603 

Glasier  v.  Rolls  331 

Glass  1).  Ellison  234 

V.  Hulbert  298,  402,  427, 

559,  563,  676 

V.  PuUen  484 

Gla.sscock  v.  Minor  330,  334 

Glaze  V.  Drayton  536 

Cleaves  v.  Paine  182 

Glen  V.  Gibson  73 

Glendenning  v.  Johnston  240 

Glendon  Iron  Co.  v.  L'hler  654 

Glengarry  Consol.  Co.  v.  Boehmer  373 

Glenn  i'.  Clark  452 

V.  Glenn  174 

V.  Statler  292,  302 

Glenny  v.  Smith  650,  658 

Glenorchy    v.    Bosville     95,    96,    97, 

113,  673 
Glenwood  Mfg.  Co.  v.  Syme  373 

Glidden  v.  Strupler  449 

Gildewell  v.  Spaugh  146,  421 

Globe  Mut.  Life  Ins.  Co.  v.  Reals  682 
Glos  V.  Knealy  777 

Gloucester    (Corporation    of)    r. 
Wood  151 


Gloucester,  etc.,  Co.  v.  Cement 
Co.  543,  553,  .5.59 

Glover  v.  Condell  132 

V.  Fisher  568 

V.  Glover  186 

Gluckstein  v.  Barnes  377 


Glyn  V.  Hood 
Gobeille  v.  Meunier 
Goble  V.  O'Connor 
Goddard  v.  Gardiner 

r.  Ingepenne 

V.  Sawyer 

V.  Snow 
Goddard  Peck  Co.  v.  McCune 


Godfrey  v.  Harben 
V.  Hutchins 
V.  Littel 
V.  Rosenthal 

Coding  r.  R.  R.  Co. 

Godsall  V.  Boldero 

Goff  V.  Goff 

Going  ('.  Emery 

Goldberg  v.  Stablemen's 

Golden  v.  Maupin 

Goldfield   Mines  Co.    v. 
LTnion 

Goldman  v.  Goldman 

Goldsmid  v.  (ioldsmid 


271 
620 
326 
767 
11 
250 
395 
721 
171,310 
209 
708 
55" 
549 
346 
397 
207 
628 
702 
Miners' 

628 
283 
742 


V.  Tunbridge   Wells 

Imp.  Co.  636 

Goldsmith  v.  Guild  568,  570 

Goldsworthy  v.  Boyle  613 

GoUober  v.  Martin  417 

Goltra  V.  Sanasack  292 

Gomm  V.  Parrott  705 

Gompers  v.  Rochester  353 

Gooch  V.  Association  for  Relief     197 

V.  Baxter  522 

Good  V.  Harris  167 

V.  Herr  292 

V.  Zook  304 

Goodale  v.  Wheeler  383,  387 

Goodburn  v.  Stevens  487,  703, 

704,717 

Goodell  V.  Blumer  777 

V.  Goodell  159 

Gootiliue  Co.  V.  Davis  374 

Goodloe  1'.  Goodloe  561 

Goodman  i'.  Grierson  239 


Ix.xiv 


TABLE    OF   CASES. 


Goodman  v.  Whitcomb 

715 

Cloodrich  v.  City  of  Milwaukee 

93 

V.  Shaw 

361 

V.  Smith 

680 

V.  Tenney 

358 

Cloodrum  v.  Goodrum 

167 

(ioodson  V.  Richardson 

575 

Goodwin  Co.'s  Appeal 

541 

(ioodwin  V.  McMinn 

338 

V.  Parnell 

144 

Goodyear  v.  Selz 

286 

V.  Watson 

493 

[The  references  are  to  the  pages.] 

Grady  v.  O'Reilly 
Graeff's  Appeal 
Graeff  i'.  Felix 
Gragg  V.  Martin 
Graham ,  In  re 


rioodyear's  India  Rubber  Glove 

Mtg.  Co.  V.  Goodyear  Rubber 

Co.  653,654 

Goo  Kim  V.  Holt  437 

Gordon  v.  Brown  286 

V.  Graham  250 

V.  Green  111 

V.  Johnson  61 

V.  Lewis  480 

V.  Lowell  288 

Gore  V.  Brian  493 

V.  Gibson  361 

Gorham  v.  Arnold  234,  238 

r.  Daniels  93 

Gorman  v.  Bonner  586 

V.  Mullins  755 

Gorringe  v.  Irwell  India  Rubber 

Works  270 

Gorton,  In  re  487 

Goss  V.  Lord  Nugent  564 

V.  Tracy  312 

Gossard  v.  Crosby  665 

Gotwalt  V.  Neal  346 

Gough  V.  Crane  540,  561 

V.  Williamson  565 

Gould  V.  Cayuga  Nat.  Bank  311 

V.  Gould  182 

,v.  Mayor  of  Atlanta  606 

V.  Okeden  311 

Gourley  v.  Woodbury  695 

Gout  V.  Aleploglu  650 

Gouverneur  v.  Lynch  421 

Cover's  Case  377 

Cover  V.  Hall  692 

Gov.  Bldg.  Institution  v.  Denny   449 

CJowan  V.  Jeffries  716,  782 

Gower  v.  Sterner  298  ' 


251 

505 

52 

383 

752 

Graham  v.  Citizens-  Nat.  Bank 

585,  587 

V.  Cummings  688 

V.  Graham  397 

V.  Hackwith  281,  5.j7 

V.  HoUinger  320,  332 

V.  Londonderry  181 

V.  Long  110 

V.  Maxwell  603 

V.  Mutual  Aid  Soc,  784 

V.  Oliver  566 

V.  Pancoast  340,  361 

V.  Samuel  425 

Grammel's  Estate,  In  re  219 

Grand  Chute  v.  Winegar  22,  56 

Grand   Hotel   Co.   of  Caledonia 

Springs  v.  Wilson  654 

Grand  Rapids  Furniture  Co.  v. 

Haney  Furniture  Co.  604 

V.  Trustees  of  School  District     784 
Grand  Rapids  Ry.  Co.  v.  Grand 

Rapids  005 

Grand  Trunk  Railway  v.  Cook       068 
Granger  v.  French  264 

Grant  v.  Grant  327 

V.  Saunders  196,  206,  216 

Grantham  v.  Gossett  542 

V.  Kennedy  309 

Grape  Creek  Coal  Co.  v.  Spellman  553 
Gratz  ('.  Cohen  361 

Graves  v.  Graves  186 

V.  Rogers  450 

Gray  v.  Building  Trades  Coun- 
cil 628 
V.  Chiswell  721 
V.  Citizens'  Gas  Co.  58 
V.  Crockett  449 
V.  Fox  220 
V.  Oxnard  Bros.  66 
V.  Pentland  767 
V.  Russell  646 
I'.  Thompson  222 
V.  Woods  676 
V.  Zellmer                                495 


TABLE    OF   CASES. 


Ixxv 


[The  references  are  to  the  pages.] 


Graydon  v.  Graydon  698 

Great  Falls  Mfg.   Co.   v.  Wors- 

ter  70,  538,  603 

Great  Lithia  Spring  Co.  v.  Great 

Bear  Spring  Co.  653 

Great   Luxembourg   Ry.   Co.   v. 

Magnay  317,  377 

Great  North  of  England  Ry.  Co. 

V.  Clarence  Railway  Co.  574 

Great  West.  Ins.  Co.  v.  Cunliffe     690 

Green  v.  Allen  193 

V.  Canny  575 

V.  Coast  Line  R*  R.  Co. 

(The)  68 

V.  Drinker  425 

V.  Drummond  137,  140 

V.  Duvergey  311 

V.  Farmer  480 

V.  Goodall  396 

V.  Green  148 

V.  Groves  562,  563 

V.  Johnson  463 

V.  Keene  731 

V.  Mills  58 

V.  Morris  R.  R.  Company     296 

V.  Putnam  698 

V.  Richards  562 

V.  Rick  428 

V.  Roworth  369 

V.  Rumph  97 

V.  Slayter  428 

V.  Smith  443 

V.  Spalding  54 

V.  U.  S.  Bank  249 

V.  White  428 

V.  Wills  613 

V.  Winter  156,  223,  224 

Greenaway  v.  Adams  683 

Greene  v.  Darling  480 

V.  Dickson  673 

V.  Kirkwood  350 

V.  Mumford  605 

1'.  Smith  291 

Greenfield's  Estate         115,  268,  302, 

363,  370, 373 
Greenland  v.  W'addell  463 

Greenway,  Ex  parte  279,  281 

Greenway  v.  Greenway  465,  466 

Greenwood  v.  Brodhead  724 


462, 
468,  746 

379 
502,  505 

142 

361 


Greenwood  v.  Greenwood 

V.  Spring 
V.  Taylor 
Greer  v.  Baughman 

V.  Greer 
Gregg  V.  Metropolitan  Trust  Co. 

498,  507,  510 

V.  Sanford  604 

V.  Thurber  58 

V.  Von  Phul  439 

Gregoire  v.  Rourke  276 

Gregory's  Ex'rs  v.  Forrester  692 

Gregory  v.  Bowlsby  338 

V.  Murrell  497 

V.  Wilson  286 

Gresley  v.  Mousley  312,  316,  366,  404 

Gretton  v.  Haward  453 

Grey  v.  Grey  143,  145 

V.    Greenville    &    Hudson 

Ry.  Co.  668 

Greyburn  v.  Clarkson  219 

Grey  de  Wilton  v.  Saxon  662 

Gribbel  v.  Brown  248 

Grieve  v.  Grieve  302 

Grievson  v.  Kirsopp  466 

Griffeth  v.  Brown  446 

Griffin,  Matter  of  111,  216 

Griffin  v.  Banks  189 

V.  Cunningham  555 

V.  Graham  206 

V.  Griffin  525 

Griffith  V.  Bank  545 

V.  Beecher  464 

V.  Godey  360,  372 

V.  Griffith  167 

V.  Phillips  697 

V.  Tower  Pub.  Co.,  Ltd.     264 

V.  Wright  437 

Griffiths  V.  Robins  366 

Griggs  V.  Docter  603 

Grim's  Appeal  449 

Grimes  v.  Harmon  206,  306 

Grimstone,  Ex  parte  757 

Grindrod  i'.  Wolf  339,  341 

Grissell  v.  Swinhoe  458 

Griswold  v.  Gebbie  331 

V.  Hazard  292,  293,  294,  786 

V.  Sackett  229 


ixxvi 


tablt:  of  cases. 


[The  references  are  to  the  pages.] 


Groff's  Appeal 

668 

Groff  V.  Rohrer 

298 

Grogan  v.  Cooke 

731 

V.  Valley  Trading  Co 

244 

Groome  v.  Belt 

62 

Gross  \i.  Leber 

292 

Grosvenor  v.  Flint 

553 

V.  Sherratt 

366 

Groton  Mfg.  Co.  v.  Gardiner 

261 

526 

Grove  v.  Bastard 

774 

V.  Hodges 

327 

Groves  v.  Webber 

777 

Grubb's  Appeal         55,  620, 

673 

688 

Grubb  V.  Cottrell 

482 

Gruber  ik  Baker 

263 

442 

Gruhn  v.  Richardson 

238 

Grumley  v.  Webb 

159 

325 

Grymes  v.  Hone 

270 

V.  Sanders 

311 

403 

Guarantee  Trust  Co.  v.  Dell 

a  & 

Pine  Land  Co. 

73 

Guerand  v.  Bandelet 

663 

Guerin  v.  Stacy 

284 

Guernsey  v.  Ins.  Co. 

402 

Guest  V.  Farley 

93,94 

V.  Smythe 

377 

Guillotte  i>.  Poincy 

613 

(iiiinan  v.  Donnell 

371 

Guion  V.  Knapp 

488 

GuUicksen  v.  Madsen 

729 

Gump's  Appeal 

298 

675 

Gunn  V.  Black's  Admtrx. 

157 

V.  Brantley 

235 

V.  Harrison 

594 

Gunning  v.  Sorg 

52 

Gunster  v.  The  Scranton  Illumi- 

nating Heat  and  Power  Co 

, 

419 

Gunter  v.  Addy 

494 

V.  Halsey 

565 

V.  Williams 

175 

Gurnell  v.  Gardner           260, 

267 

270 

Gutheil  Co.  v.  Montclair 

777 

Guthrie  v.  Doud 

586 

V.  Gardner 

141, 

144 

V.  Quinn 

439 

Gwlllim  V.  Stone 

683 

Gwinther  v.  Gerding 

310 

Gwvnn  r.  Hamilton 

293 

Gwynne  v.  Heaton 

340 

H. 

H.  &  T.  C.  Ry.  Co.  v.  McCarty         303 

Habershon  v.  Vardon  195 

Hach  V.  Rollins  397 

Hacke's  Appeal  58 

Hackett  r.  Alcock  283 

V.  Reynolds  525 

Hackley  ?'.  Draper  313 

Hackney  v.  Butts  137 

r.  Mclninch  620 

Hackwith  v.  Damron  421 

Hadden  v.  Dandy  209 

V.  Spader  730 

Haden  v.  Ware  296 

Hadley  v.  Clinton  Importing  Co.  328 

V.  Farsee  207 

V.  Hopkins  Academy  198,  207 

V.  Latimer  359 

1).  Pickett  520 

Haffey  ?'.  Lynch  568 

Haffner  v.  Dobrinski  549 

Hagan  v.  Bank  529 

V.  Ellis  443 

V.  Walker  729,  736 

Hagar  v.  Brainerd  235 

V.  Buck  276,  286 

Haggerty  v.  McCanna  302 

Hague  V.  West  Hoboken  447 

Hahn  v.  Concordia  Society  (The)  664 

V.  Hutchinson  101 

Haigh  V.  Kaye  162,  338 

Haight  V.  Day  132 

V.  McVeagh  176 

Haine's  Appeal  778 

Haines  v.  Allen  197 

V.  Beach  236 

V.  Ellis  173 

V.  Thompson  243 

Hairalson  v.  Carson  658 

Haisten  v.  Savannah,  etc.,  R.  Co.  562 

Hale  V.  Allinson  594 

V.  Coffin  01 

V.  Everett  060 

V.  Hale  755 

V.  Henrie  718 

V.  Hollon  •  257,  341 

XK  Home  237 

V.  Plummer  717 

V.  Stone  107 


TABLE    OF    CASES. 


Ixxvii 


[The  references  are  to  the  pages.] 


Hale  V.  Wilkinson 

V.  Wilson 

V.  Young 
Haley  v.  Bennett 
Hall's  Appeal 
Hall,  In  re 
Hall,  Matter  of 
Hail  V.  Bliss 

V.  Cayot 

V.  Cole 

V.  Congdon 

V.  Cushman 

V.  Denckla 

V.  Hall  119, 


V.  Hallct 

V.  Hiles 

V.  Hyer 

V.  Joiner  56, 

V.  Jones 

V.  Knappenberger 

V.  Lewis 

V.  Moore 

V.  Nash 

V.  Nester 

V.  Patterson 

V.  Piddock 

V.  Potter 

V.  Small 

V.  Smith 

V.  Timmons 

V.  Tunnell 

V.  Vernon 

V.  Warren 

V.  Waterhouse 

V.  Winan 
Hallenback  v.  Rogers 
Hallesy  v.  Jackson 
Hallett's  Estate,  In  re 
Hallett  V.  Arapahoe  Co., 
V.  Parker 
V.  Thompson 
V.  Wylie 
Hallett  &  Co.,  In  re 
Halley  v.  Ball 
Halliday  v.  Holgate 
Hallinger  v.  Zimmerman 
Hallows  V.  Fernie 
V.  Lloyd 


.547 
711 
673 
518 

353,  575,  776 
422 
218 
100 
529 
483 
138 
491 
235 
27S,  452,  4.55, 
459,  525,  716 
378 
542 
504 

729,  731,  762 

523,  536 

374 

240 

159 

60 

57 

309 

583,  694,  698 
347 
107 
535 
450 

234,  235 
695 
548 

169,  170 
365 
144 

235,  548 
148,  788 

605 
535 
101 
279 
148 
175 
528 
321 
324 
418 


Halls  r.  Thompson  334 

Hall}^  V.  IngersoU  57 

Halo  V.  Schick  243 
Halsey  v.  Convent    of    P.    E. 

Church       194,  197,  206 
V.  Peters  546 
Halstead  r.  The  Bank  of  Ken- 
tucky 414 
Halvorsen  v.  Halvorsen  519 
Ham  7'.  Goodrich  562 
V.  Johnson  552 
Hamaker  r.  Schroers  283 
Hamberlin  v.  Terry  312 
Hambel  v.  Hambel  129 
Hamblct  v.  Harrison  418 
Hamburg-Bremen  Fire  Ins.  Co. 

V.  Pclzer  Mfg.  Co.  290 

Hamdcn  v.  Rice  200 

Hamer  v.  Sid  way  111 

Hamersley  v.  Lambert  721 

V.  Smith  179 

Hamet  v.  Dundass  340 

Hamilton,  In  re  125 

Hamilton  v.  Asslin  298 

V.  Bishop                 166,  167 

V.  Carter  439 

V.  Cummings           680,  681 

(Duke  of)  V.  Lord 

Mohun  368 

V.  Dunsford  663 

V.  Hubbard  144 

V.  Marks  599 

V.  Nutt  426 

V.  Rogers  257 

V.  Semet  Solvay  Co.  641 

V.  Wickson  135 

Hamilton  Shoe  Co.  v.  Saxey  628 

Hamilton  Trust  Co.  v.  Clemes  525 

Hamlen's  Admtr.  r.  Bennett  449 

Hamlen  v.  McGillicuddy  731 

Hamlin  v.  Abell  330 

V.  Stevens  543 

V.  SuUivant  307 

Hammer  v.  McEldowney  552 

Hammerley  v.  Mercantile  Trust 

&  Deposit  Co.  509 

Hammersley  v.  De  Biel  327 

Hammond  v.  Hopkins               62,  160 

V.  Messenger  276 


Ixxviii 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Hammonds  v.  Barclay 
Hampson  v.  Edelen 
Hampton  v.  Mayes 

V.  Nicholson 
V.  Xourse 


515 

537 
519 
292 
348 


Han.  &  St.  Jo.  Ry.  Co.  v.  Nortoni  776 

Hanberg  v.  Storage  Co.  604 

Hanbury  i-.  Fisher  125 

Hance  v.  Truwhitt  456 

Hanchey  v.  Hurley  268 
V.  Southern  Bldg.  Assn.    67 

Hancock  v.  Carlton  287 

V.  Melloy  561 

V.  Smith  147 
V.  Wooten                 729,  731 
H.  and  T.  C.  Ry.  Co.  v.  McCarty     303 

Handley's  Exr.  v.  Fitzhugh  52 

Handley  v.  Stutz  733 

Handy  r.  Noonan  776 

Hanesley  v.  Bagley  776 

Haney  v.  Legg  140 

Hanford  v.  Blessing  243 

Hankins  v.  Layne  695 

Hanland  r.  Myers  185 

Hanlon  r.  Doherty  252 

Hann  v.  Hann  774 

Hanna  v.  Clark  695 

Hanna's  Extr.  v.  Raynolds  100 

Hannah  v.  Davis  521 

r.  Wahlberg  542 

Hannegan  v.  Hannah  501 

Hannewinkle  v.  Georgetown  605 

Hannig  i\  Mueller  93 
Hanover  Fire   Ins.   Co.   v.   Ger- 

mania  Fire  Ins.  Co.  577 

Hanover  Nat.  Bank  v.  Blake         392 

Hans  V.  Holler  313 

Hanson  v.  Edgerly  328 

V.  Gardiner  619 

V.  Willard  692 

Harbers  v.  Gadsden  565 

Harbison  v.  Lemon  361 

Harcrow  v.  Gardiner  66 

Hardesty  v.  Richardson  561 

Hardigree  i'.  Mitchum  296 

Harding  v.  Egin  301 

V.  Fuller  589 

V.  GljTi      128,  129,  132,  133 

V.  Handy  359 


Harding  v.  Lamed  220 

V.  Parshall  557 

Hardoon  v.  Belilios  225 

Hardware  Co.  v.  Horn  138,  141 

Hard  wick  ik  Forbes  313 

Hardy,  Ex  parte  475 

Hardy  v.  Jones  66 

V.  Martin  664 

V.  Sproule  488 

Hargett  v.  Bell  603 

Hargis  r.  Robinson  499 

Hargreaves  v.  Korcek  362 

Harington  v.  Watts  195 

Harkinson's  Appeal  353 

Harkness  v.  Eraser  366 

Harkrader  v.  Leiby  234 

V.  Wadley  591 

Harlan  v.  Maglaughlin  387 

Harlan  County  v.  Whitney  497 

Harland  v.  Binks  120 

V.  Trigg  128,  130 

Harlow  v.  Publishing  Co.  662 

V.  Bangor  268 

Harmer  v.  Gwynne  594 

Harmon  v.  City  of  Omaha  604 

r.  Wagener  737 

Harnett  v.  Yielding  548 

Harp  V.  Calahan  234 

Harper  v.  Archer  147 


V.  Ely 
V.  Harper 
V.  Phelps 
V.  Williams 
Harpham  v.  Shacklock 


234,  248,  416 
391 
130 
523 
412 


Harraway  v.  Harraway  373 

Harrigan  i'.  Smith  542 

Harriman  v.  Tyndale  568 

Harrington  v.  Pier         192,  194,  197, 

200,  206,  207 

V.  Rutherford  327 

Harris     v.     Amer.     B.     and     L. 

Assoc.  438 

V.  Arnold  427 

V.  Barnett  111 

V.  Chamberlain  358 

V.  Elliott  141,  144 

V.  Ferguson  482 

i;.  Harlan  520 

V.  Harris  175 


TABLE    C 

[The 

references 

Harris  v.  Knickerbacker 

565 

V.  Lee 

187 

V.  Parker 

159, 379 

V.  Powers 

704 

V.  Thiies 

351 

V.  Tyson 

329 

V.  Warner 

485,  486 

V.  Youngsto 

wn 

Bridge 

Co. 

263 

OF   CASES. 


Ixxix 


Harris  Banking  Co.  v.  Miller  110,  116, 

597 

Harrisburgh  Bank  v.  German         494 

V.  Tyler  146 

Harris  County  v.  Campbell  265 

Harrison  v.  Brophy  199 

V.  Craven  338 

V.  Deramus  566 

V.  Eldridge  701 

V.  Forth  415 

V.  Glucose   Sugar   Rfg. 

Co.  353 

V.  Good  661 

V.  Guest  339 

V.  Harrison  411 

V.  Jameson  298 

V.  McMennomy  111 

V.  McReynolds  440 

V.  Mulvane  160 

V.  Stewart  172 

V.  St.  Mark's  Church        638 

V.  Town  547 

V.  Wright  268 

Harrisburg  Bank  v.  Tyler  146 

Harrisonburg  v.  Roller  607,  613 

Harrisons   v.    Harrison's   Admr. 

126, 128 

Harrold  v.  Lane  138 

Hart's  Estate  218 

Hart  t'.  Bayliss  87,  174 

V.  Farmers'     Bank     (The) 

419,430 
V.  Hart  189,  562 

V.  Herwig  591 

V.  Mayor  ot  Albany        619,  633 
V.  Sansom  71 

r.  Seymour  111 

V.  Ten  Eyck  526 

Hartford  v.  Chipman  680 

Hartford  Ins.  Co.  v.  Haas  300 


Hartley's  Appeal 
Harton  r.  Harton 
Hartopp  V.  Hartopp 
Hartshorn  v.  Smart 


244 

166 

336,  369 

562 

V.  South  Reading  641 

Hartshorne  v.  Hartshorne       701,  705 

Hartwell  v.  Smith  485 

Hartz  V.  Schrader  719 

Harvard  College  v.  Armory  221 

Harvey's  Estate  171,310 

Harvey  v.  Aston  349 

V.  Harvey  166 

V.  Kelley  518 

V.  Mount  370 

V.  Smith  323 

Harwood  v.  Kirby  696 

Haseltine  v.  Smith  263 

Haskell  v.  Allen  708 

V.  Sutton  680 

Haskett  f.  Alexander  126 

Haskins  v.  Kendall  152 

Hassam  v.  Day  695 

Hastings  (Lady),  In  re  171,  172 

Hastings  v.  Cropper  586,  597 

V.  Orde  119 

Hatch  V.Cobb  571,683 

V.  Dana  379,  733 

V.  Hatch  367 

Hatcher  v.  Hatcher  562 

Hatchett  v.  Hatchett  132 

Hatfield  v.  De  Long  58 

Hathaway  v.  Brady  298 

Haughwout  ?'.  Murphy  416,  427,  429, 

535,  537 
Hauley  t'.  Tresilian  12 

Haupt  V.  Unger  142 

Hauselt  u.  Harrison  518 

Hauser  v.  Harding  663 

Haussman  v.  Burnham  294 

Haven  v.  Adams  428 

V.  Foster  297 

Havens  v.  Sackett  459 

Haverford  L.  &  B.  Assoc'n  v.  Fire 

Assoc 'n  494,  496 

Haviland  v.  Bloom  185 

V.  WiUets  295 

Haw.  Com.  &  S.  Co.  v.  Kahului 

R.  Co.  624 

Haward  v.  Peavey  463 


Ixxx 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Havvaidcu    v.    Youghiogheny   & 

L(>liigh  Coal  Co.  628 

Hawkins's  Appeal  368 

Hawkins  v.  Gardiner  108 

7\  Mahoney  506 

V.  Wills  389 

Mawksworth  v.  Hawksworth  754 

Ha-.vlcy  v.  Clowes  617,  619 

i\  Cramer  378 

V.  James  225,  472 

V.  Sheldon  551 

V.  ITpton  379 

Hay  r.  Alexandria  R.  R.  Co.  57 

V.  Marshall  687 

Hayden  v.  Cabot  486 

V.  Huff  499 

Hayes's  Appeal  695 

Hayes  v.  Hayes  276 

V.  Kershow  113,  546 

V.  O'Brien  551 

V.  Southern,  etc.,  Ass'n  68 

V.  Tabor  92 

V.  Ward  498,  500 

Haygarth  i-.  Wearing  322,  339 

Haymaker's  Appeal  383 

Hayman  's  Appeal  326 

Haynes  v.  Carr  196,  198 

V.  Harriman  369 

Hays's  Estate     90,  102,  173,  177,  326 

Hays  V.  Bouchelle  707 

V.  Hall  536 

V.  Hays  "  680 

V.  Jackson  511 

V.  Leonard  174 

V.  Quay  110 

t'.  Southern,  etc.,  Ass'n  68 

Haythorn  ;;.  Margerem  777 

Hayward  v.  Andrews  276 

Haywood    v.    Brunswick    Bldg. 

Soc.  664 

V.  Cope  547 

7'.  Judson  698 

Hazard  r.  Irwin  321,330 

Hazeltine  v.  B.  &  M.  R.  Co.  666 

Hazen  v.  Durling  736 

V.  Lyndon ville  Bank  684 

V.  Thurbor  701 

Head  v.  Meloney  684 

Heager's  Ex'rs  156 


Healey  v.  Alston  89 
Health  Dept.  v.  Purdon  635 
Healy  v.  Rowan  188 
Heaney  v.  B.  &  M.  Com.  Co.  622 
Heard  r.  Pilley  lo7 
Hearle  v.  Greenbank  456 
Heartley  V.  Nicholson  117 
Heath  v.  Haile  237 
V.  Jones  302 
r.  Page  381,390 
V.  Williams  244 
Heathman  v.  Hall  167 
Heaton  v.  Bank  362 
Heatwole  v.  Gorrell  284 
Hebb  V.  Moore  490 
Hebert  v.  Mut.  Life  Ins.  Co.  539 
Hebum  v.  Warner  176 
Hecht  r.  Colquhoun  54 
V.  Furniture  Co  481 
Heck  V.  Clippinger  166 
Heckard  v.  Sayre  569 
Heckman  v.  Heckman  609 
Hedderly  v.  Johnson  555 
Hedges  v.  Dixon  Co.  59,  60 
Hedin  v.  Minneapolis  Institute  322 
Heffran  v.  Hutchins  613 
Hefner  i\  Vandolah  438 
Hegeman  v.  Hegeman  264 
Heidenheimer  i\  Bauman  151 
Heilman  v.  Lebanon  Ry.  Co.  581 
V.  Union  Canal  Co.  57 
Heine  ik  The  Levee  Commis- 
sioners 57 
Heintz  v.  Dennis  146 
Heiskell  v.  Trout  138,  152 
Heisler  v.  Aultnian-  493 
Heist  V.  Baker  519 
Heister  (Lessee  of)  v.  Fortner  425 
V.  Madeira  240,  243 
Helbreg  v.  Schumann  359 
Helfenstine  v.  Garrard  93 
Hellen  v.  Crawford  500 
Heilman  v.  McWilliams  110,  119 
Helm  V.  Brewster  384 
V.  Darby's  Admrs.  741 
V.  Trust  Co.  495 
Helme  v.  Philadelphia  Life  Ins. 

Co.  448 

Helmick  i'.  Davidson  51 


TABLE    OF    CASES. 


Ixxxi 


[The  references  are  to  the  pages.] 


Helmore  v.  Smith 

714 

Herr's  Estate 

223 

Hemingway  v.  Coleman 

339 

366 

Herr,  etc.,  Co.  v.  Railway  Co. 

610 

Hcmmer  u.  Cooper 

323 

Herr  v.  Barber 

485 

liemmick  v.  Standard  Oil  Co. 

62 

V.  Payson 

371 

Hemming  ?'.  Maddick 

487 

772 

Herring  v.  Wilton 

57 

Hemphill's  Appeal 

219 

221 

Herring-Hall  Co.  v.  Hall's 

Safe 

Estate 

90 

123 

Co. 

655 

Hemphill  v.  Ross 

234 

Herrod  r.  Fauntleroy 

316 

Hcmple  V.  Hastings 

604 

Herron  v.  Herron 

374 

Hemsley  v.  Meyers 

591, 

604 

Hertzler  r.  Stevens 

301 

Hendershott  v.  Henry 

449 

Hervey  v.  Smith               574, 

575 

578 

Henderson  &  Co.  v.  U.  S. 

Nat. 

Herzberg  ?'.  Irwin 

555 

Bank 

268 

Hess's  Estate 

222 

491 

Henderson  r.  Burton 

741 

Hetfield  v.  WiUey 

548 

V.  Dickey 

301 

Hetrick's  Appeal 

361 

V.  Hays 

545 

Hetterman  v.  Powers 

658 

V.  Henderson 

116 

Heu.ser  v.  Harris 

196 

Hendrick  v.  Whittemore 

485 

Hewes  v.  Dehon 

487 

Hendricks  v.  Robinson    382 

,731, 

732 

Hewins  v.  Baker 

269 

Hendrickson  v.  Hinckley 

586 

Hewitt's  Appeal 

605 

Hendry  v.  Key 

601 

Hewitt  V.  Dean 

286 

V.  Whidden 

539 

V.  Loosemore 

417 

Henkleman  v.  Peterson 

299 

V.  Powers 

297 

Henley  v.  Houghtaling 

243 

Heyder    ?'.    Excelsior    B.    &    L. 

Henn  r.  Walsh 

715 

Assoc. 

70 

Hennessy  v.  Bacon 

296, 

681 

Heyman    v.    European    Central 

V.  Woolworth 

544 

Ry.  Co. 

404 

Henry's  Case 

236 

Heyward  v.  Cuthbert 

702 

Henry  v.  Clark 

240 

Hibernia  Society  v.  Ordway 

65 

V.  Deitrich 

192 

667 

Hibert  v.  Lang 

479 

V.  Henry 

299 

495 

Hickman  v.  Berens 

297 

V.  Koch 

574 

619 

V.  McCurdy 

484 

V.  Mayer 

17 

V.  Stout 

687 

V.  Raiman 

371 

Hicks  (Matter  of) 

148 

Henshaw  r.  Wells 

235 

Hicks  V.  .\m.  Nat.  Gas  Co. 

615 

635 

Hensinger  v.  Dyer 

362 

V.  Compton 

622 

Henty  v.  Wrey 

399 

V.  Hastings 

707 

Hepburn  v.  Auld              565 

,567 

570 

V.  Hicks 

240 

V.  Dunlop 

555 

557 

V.  Michael 

660 

V.  Lordan 

578 

639 

V.  Steel 

263 

V.  McDowell 

445 

Hidden  v.  Jordan 

137 

r.  Heppenstall  v. 

Leng 

771 

Hiett  V.  ShuU 

680 

Hepworth  r.  Henshall 

542 

Higgenbottom  v.  Peyton 

108 

Herbert  v.  Herbert 

583 

Higgens  v.  Lansingh,  Admr. 

269 

V.  Wren 

455 

701 

Higgins  ?'.  Higgins 

396 

Hercy  v.  Birch 

712 

Higgins  Co.  v.  Higgins  Co. 

658 

Herd  v.  Catron 

350 

High  V.  W^orley 

463 

Heren  v.  Heren 

292 

Highberger  v.  Stiffler 

360 

,  369 

Herlihy  v.  Coney 
F 

135 

Highlands  v.  Fire  Ins.  Co. 

442 

Ixxxii 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Highwayman  (The) 

65 

Hissam  v.  Parrish 

545 

Hill  I'.  Barclay 

287 

Hitchcock  I'.  Harrington 

237 

V.  Beach 

720 

V.  Hustace 

377 

V.  Bishop  of  Exeter 

393 

V.  Skinner 

69c 

.,698 

V.  Bowie 

615 

Hitchcox  V.  Morrison 

695 

V.  Bowman 

608 

Hitchen  v.  Birks 

781 

V.  Bush 

302 

Hitchens  v.  Pettingill 

675 

V.  Campbell 

765 

Hitchins  r.  Congreve 

377 

V.  Epley             436,  437,  439 

,447 

Hitchman  v.  Stewart 

483 

V.  Hall 

370 

Hitner's  Appeal 

190 

V.  Hill 

125 

Hitt  V.  Holliday 

236 

V.  Lackey 

281 

Hitz  !'.  Jenks 

784 

V.  McLaurin 

359 

Hoadley  v.  Seward 

638 

V.  McRae 

102 

Hoagland  v.  Green 

494 

,496 

V.  Miller 

360 

V.  Latourette 

537 

V.  Rich  Hill  Mining  Co. 

550 

Hoar  r.  Hoar 

140 

V.  Robertson 

235 

Hoare  i'.  Bremridge 

313 

,587 

V.  Turner 

603 

V.  Osborne 

195 

V.  Wand 

438 

Hoblyn  ?'.  Hoblyn 

369 

V.  White 

236 

Hoboken  Bank  v.  Schwoon 

114 

V.  Winne 

238 

Hobson,  In  re 

461 

,504 

Hillary  v.  Waller 

556 

Hobson  V.  Sherwood 

696 

Hiller  v.  Jones 

384 

V.  Trevor 

257 

Hills  V.  Croll 

662 

Hockaday  ?-.  Jones 

586 

rj.  Miller 

660 

Hocker  r.  Gentry 

463 

Hillyard  v.  Miller 

213 

Hockley  r.  Bantock 

524 

Hilt  V.  Simpson 

338 

Hoddel  i\  Pugh 

536 

Hilton  )'.  Eckersley 

353 

Hoddy  I'.  Hoard 

672 

Himrod  v.  Oilman 

274 

Hodge  V.  Att.-Gen. 

83 

Hinchinbroke  (Lord)  v.  Seymour 

399 

Hodgen  v.  Guttery 

228 

Hinchman  v.  Paterson  Horse  R. 

Hodges'  Estate,  Re 

222 

Co. 

640 

Hodges  V.  Buell 

288 

Hinckley  v.  Thatcher 

199 

V.  Smith 

601 

Hindman  v.  O'Connor 

379 

V.  Verner 

138 

Hindson  v.  Weatherill              364 

371 

Hodgson  V.  Farrell 

340 

Hindustan  (Bank  of),  In  re 

518 

V.  Macy 

145 

Hine  v.  Handy 

583 

V.  Shaw 

493 

Mines  v.  Thorn 

317 

V.  Smith 

519 

Hinkle  v.  Hinkle 

561 

V.  Williamson 

171 

310 

V.  Wanzer 

256 

Hodson  V.  Coppard 

663 

llinsdill  iJ.  Murray                    491 

497 

V.  Heuland 

563 

Hintz  )'.  Hintz 

362 

Hoffen's  Estate,  In  re       153, 

206, 

207 

Hipp  r.  Babin 

55 

Hoff 's  Appeal 

513 

Hipwell  V.  Surety  Co. 

265 

Hoffman  v.  Brooks 

354 

Hires  i'.  Consumers'  Co. 

653 

V.  Cumberland  Coal  Go. 

Hirsch  v.  Jonas 

653 

(The) 

378 

Hirsh  V.  .\uer 

111 

V.  Harrington 

235 

Hirst's  Appeal 

513 

V.  Johnson 

487 

Estate 

513 

V.  Livingston 

581 

TABLE    OF    CASES. 


Ixxxiii 


[The  references  are  to  the  pages.] 


Hoftman  v.  Woods  777 

Hoffner's  Estate  53,  337 

Hogan  V.  Jaques  154 

V.  Peterson  439 

V.  Strayhorn  154 

V.  Sullivan  123 

V.  Walsh  713 

Hogden  i'.  Guttery  236 

Hoge  V.  Hoge  154,  162,  313 

Hoggart  V.  Cutts  600 

Hoggatt  V.  Wade  521 

Hoghton  V.  Hoghton  363,  369 

Hogsett  V.  Ellis  238 

Hogue  V.  Curtis  592 

Hoigges  V.  Harry  12,  580 

Hokanson  v.  Gunderson  428 

Hoke  V.  Davis  690 

Holbrook's  Estate  349 

Holbrook  v.  Connor  323 

V.  Nesbitt  653 

Holdane  v.  Cold  Spring  446 

Holden  v.  City  of  Alton  607 

V.  McMakin         715,  716,  782 

V.  Pike                      \  489 

Holder  v.  Nunnelly  142 

Holderstaffe  v.  Saunders  603 

Hole  V.  Barlow  632 

V.  Thomas  617,  618 

Holgate  V.  Eaton  549 

Holladay  v.  WiUis  245 

Holland,  In  re        '  386 

Holland  v.  Alcock  194,  199,  207, 

209, 210 

V.  Anderson  571 

V.  Cruft  463 

V.  Hallahan  689 

V.  Hensley  113,545 

V.  Holland  390 

V.  Mayor  of  Baltimore     777 

Hollenback's  Appeal  674 

Holliday  1'.  Hively  173,  174 

V.  Overton  112 

HoUingsworth  v.  Floyd  485 

Hollins  ?'.  Brierfield  Co.  734 

HoUis  V.  Hayes  135,  141 

HoUoway  v.  Headington  121 

V.  Holloway  655 

V.  Radcliffe  476 

Holloux'll  V.  Ins.  Co.  288 


Holm  V.  Windsor  641 

Holman  v.  Loynes  370 

Holmes's  Appeal  550 

Holmes  t'.  Deppert  421 

V.  Dowie  161 

V.  Bring  220 

V.  Fulton  694 

V.  Gilman  148 

V.  Holmes  692 

V.  Holmes  Mfg.  Co.  653 

V.  Martin  329 


V.  Penney 
V.  Powell 
V.  Remsen 
V.  Stix 
V.  Walter 
Holridge  v.  Gillespie 
Holroyd  v.  Marshall 


383, 387 

420 

587 

718 

93 

156, 240 

258,  259, 

261,526 

Holsman  v.  Boiling  Spring  Co.     634 

Holt  V.  Couch  698 

V.  Sav.  Bank  497 

V.  Thurman  264 

Homan  v.  Stewart  551 

Home  Bank  v.  Stewart  443 

Home   for   Incurables   v.    Noble 

306, 307 
Home  Ins.  Co.  v.  Howell  591 

Home  Inv.  Co.  v.  Clarson  493 

Home    Savings,    etc.,    Ass'n    v. 

Burton  251 

Home  Scale  Co.  v.  Wyckoff  655 

Homer  v.  Homer  109,  137 

Homfray  v.  Fothergill  712 

Homoeopathic  Mut.  Life  Ins.  Co. 

V.  Marshall  170 

Honore  v.  Hutchings  138 

Honywood  v.  Forster  458 

Hood  V.  Att.-Gen.  195 

V.  Dorer  192,  199,  207 

V.  Oglander  125,  130 

Hood-Barrs  v.  Cathcart  177 

V.  Heriot  177 

Hooker  v.  Montague  96 

V.  Pynchon  544 

Hooley  v.  Hatton  745 

Hoon  V.  Hoon  144 

Hooper,  Ex  parte  524 

Hooper  v.  Feigner  89 


Ixxxiv 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Hooper  v.  Holmes  108 

Hoopes  V.  Dundas  349 

V.  Ebel  53 

Hoops  r    Fitzgerald  302 

Hoover  v   Epler  498 

V.  Hoover  511,  741 

V.  Reilly  292 

Hope  V.  Carnegie  603 

V.  Hayley  257 

V.  Lawrence  439 

Hopkins  V   Beebe  268,  517 

V.  Canal  Proprietors         779 

I.  Crossley  206 

V.  Garrard  427 

V.  Glunt  127 

V.  Grimshaw  153,  212 

V.  Hopkins  87 

V  Kent  89 

V.  McLaren  428 

V.  United  States  356 

V.  Washington  County    265 

Hopkins     Amusement     Co.     v. 

Frohman  653 

Hopkinson  v.  Burghley  648 

V.  Forster  268 

V.  Rolt  250 

Hopkirk  v  Randolph  382,  386 

Hopper  V.  Hopper  535,  543 

V.  McWhorter  440 

Hoppiss  V.  Eskridge  265 

Hopwood  V.  McCausland  294 

Horljach  r.  Gray  300 

Horljerry  v.  Harding  100 

Horn  V.  Cole  436,  438,  447 

V.  Horn  731 

r.  Keteltas  244,  677 

Home  V.  Ingraham  107 

V.  Lyeth  96 

Horner's  Ex'rs  v.  McGaughy  744 

Horner  v.  Woodland  552 

Horton  v.  Lee  323 

Horwood  V.  West  128 

Hosking  v.  Smith  248 

Hospes   V.    Northw.    Mfg.,    etc., 

Co.  733 

Hossack  V.  Graham  268 

Hostctter  r.  Vowinkle  651 

Hotchkiss  V.  Middlekauf  72 

Hotz's  Estate  349 


Houchens  v.  Houchens  657 

Hough  r.  Richardson       330,  334,  418 
Houlton  V.  Dunn  358 

House  V.  Falconer  697 

Houseman  v.  Building  Associa- 
tion (The)  419 
V.  Grossman  390,  730 
Houser  v.  Lamont  243 
Houston's  Appeal  504 
Houston  V.  Bank  of  Huntsville      493 

V.  Embry 

V.  Farris 

V.  Faul 

V.  JefTerson  College 

V.  Townsend 

Hout 
V.  Bradbury 
How  V.  Weldon 
Howard  v.  American 
ciety 

V.  Carpenter 

V.  Delgado  &  Co 

V.  Digby 

r.  Edgell 

V.  Harris 

V.  Howard 

V.  Hudson 

V.  Jones 

V.  Manufacturing  Co 

V.  MofTatt 

V.  Robinson 

r.  Turner 


Hout  V. 
Hovev 


Peace 


Howe,  Matter  of 
Howe  V.  Dunlap 

V.  Howe 

V.  Russell 

V.  Sheppard 

V.  Watson 
Howell  V.  Ashmore 
V.  Howell 
V.  Mellon 
Howey  v.  Goings 
Howison  V.  Bartlett 
Howlin  V.  Castro 
Howser  v.  Cruikshank 
Hoxie  V.  Carr 

V.  Home  Ins.  Co. 
Hoye  V.  Kalashian 
Hoyt  V.  Gouge 


168 
108 
299 
668 
563 
305 
61 
344 
So- 

196, 207 

303 

516 

181 

547 

236, 239 

119,340 

447 

52 

560 

182 

234 

403 

525 

56 

135,  359,  361 

677 

480 

552 

765 

145 

476 

692 

553 

680 

503 

136,  716 

439, 442 

415 

600 


TABLE    OF    CASES. 


Ixxxv 


[The  references  are  to  the  pages.] 


Hoyt  V.  Hoyt 

656 

V.  Latham 

160 

V.  Story 

267 

V.  Tuxbury 

549 

,555 

Hubbard  v.  Goodwin 

100 

,  141 

V.  Harrison 

238 

V.  Jasinski 

588 

V.  Long 

421 

V.  Martin 

297 

V.  Shaw 

247 

V.  Tod 

67 

V.  Worcester 

Art 

Mu- 

seum 

198 

Hubbell  V.  Meigs 

321 

V.  Moulson 

247 

V.  Von  Schoening 

549 

Hubble  V.  Perrin 

720 

Huber  Mfg.  Co.  v.  Claudel 

673 

Huber's  Appeal 

90 

Huckenstine's  Appeal 

637 

638 

Hudelson  v.  Wilson 

519 

Hudkins  v.  Ward 

503 

Hudnal  v.  Wilder 

393 

Hudson  V.  Barrett 

713 

V.  Cook 

467 

V.  Hawkins 

148 

V.  Hudson 

342 

V.  Max  Meadow's  L.  & 

I.  Co.  556 
t;.  Wheeler  317 
V.  White  142 
Huff  V.  Shepard  552 
Huger  V.  Cunningham  713 
V.  Huger  224,  755 
Huggin's  Estate  118 
Hughes,  Ex  parte  378 
Hughes  Hallett  v.  Indian  Mam- 
moth Gold  Mines  Co.  772 
Hughes  V.  Boyd  350 
V.  Directors      of  Metr. 

Ry.  Co.  288 

V.  Fitzgerald  126 

V.  Kearney  521 

V.  Linn  County  609 

V.  Littlefield  494 

V.  Morris  563 

V.  Peters  175 

V.  Sheaff  243 

V.  Statham  264,  652 


Hughes  V.  Thomas  495 

V.  United  States 

298,421,680 

V.  White  138,  147 

Hughitt  V.  Hayes  481 

Huguenin  v.  Baseley     119,  359,  362, 

363,  373 
Huiskamp  v.  Moline  Wagon  Co.  721 
Huke  V.  Huke  751 

Hukill  V.  Myers  288 

Hulen  V.  Earel  353 

Hulings  V.  Hulings  Lumber  Co.     268 
Hull  V.  Hull  704 

V.  Sturdivant  544 

HuUey  v.  Security,  etc.,  Co.  636 

Hulme  V.  Tenant  165,  171,  174, 

175,  177,  181 
Hulse  V.  Bonsack  Mach.  Co.  351 

Humane  Fire  Co.'s  Appeal  200 

Humbertson  v.  Humbertson  98 

Hummel's  Appeal  397 

Humphreys  v.  Atlant.  Mill.  Co.       55 
V.  Butler  148 

V.  Mattoon  317 

Humphries  v.  The  Little  Sisters     198 
Hundley  v.  Mount  425 

Hungerford  v.  Hungerford  189 

Hunt's  Appeal  466,  467 

Hunt  i;.  Barker  334 

V.  Bass  217 

V.  Blanton  404 

V.  Danforth  22 

V.  Fowler  207 

V.  Freeman  588 

V.  Hamilton  312 

V.  Hunt  189,  562 

V.  Luck  420 

V.  Moore  330,  359 

V.  Mortimer  267 

V.  Riverside  Club  354 

?'.  Rousmanier's  Admr.-^.      269, 
292,  293,  294,  295 
V.  Rowland  65 

Hunter's  Appeal  608 

Hunter,  In  re  195 

Hunter  v.  Att.-Gen.  209 

V.  Coe  67 

V.  Hatch  242 

V.  Hubbard  228 


Ixxxvi 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 

Hyland  v.  Roe 
Hylton  V.  Hylton 
Hyman  v.  Hauff 
V.  Kelly 
Hyndman  v.  Hyndman 


Hunter  v.  Hunter 

495 

V.  McLaughlin 

322 

V.  Stembridge 

128 

Hunthig  V.  Damon 

555 

Huntington  v.  Jones   . 

730 

532 

Huntington,  etc.,  Devel.  Co.  v. 

Thornberg 

562 

Huntley  v.  Kingman 

385 

Huntly  !•.  Huntly 

116 

117 

Huntress  i\  Allen 

101 

Huoncker  v.  Merkey 

242 

Kurd  V.  Hall 

298 

Hurlbert  v.  Kellogg  Co. 

321 

Hurlburt  r.  Arthur 

443 

Hurlbutt  V.  Butenop 

428 

Hurley  v.  Levee  Commissioners 

613 

Hurricane     Telephone     Co. 

V. 

Mohler 

762 

Hunsen  v.  Hursen 

321 

Hurst's  Lessee  r.  McNeil 

86 

Hurst  V.  Beach 

745 

Husband  v.  Epling 

176 

Huson  ('.  Wallace 

156 

Huss  V.  Morris                 299, 

305 

402 

Husted's  Appeal 

440 

Huston's  Appeal 

494 

Hutcheson  v.  McNutt 

551 

Hutchins  v.  Carleton 

252 

V.  Heywood         8] 

,93 

101 

V.  Hope 

692 

V.  King 

237 

V.  Lee 

106 

V.  McCauley 

485 

V.  \'an  Vechten 

109 

Hutchinson  v.  Bank 

148 

V.  Ford 

261 

V.  Green 

604 

V.  Hutchinson 

147 

V.  Maxwell 

102 

V.  Roberts 

484 

V.  Tindall 

359 

Hutchinson  &  Tennant,  In  re 

125 

127 

Hutton  V.  Duey 

190 

Hutzler  r.  Phillips 

524 

525 

Huxford  r.  Southern  Pine  Co 

620 

Hyde  ;•.  Baker 

314 

V.  Tanner 

678 

Hyer  v.  Little 

359 

V.  Piichmoud  Trac.  Co. 

32G, 

712 

147 
367 
251 
234 
157 


I. 

Ibbitson,  In  re 
Iddings  V.  Iddings 
Ide  V.  Brown 
Iglehart  v.  Armiger 

V.  Gibson 
Ilgenfritz  v.  Ilgenfritz 
Illingworth  v.  Rowe 
111.  Cent.  R.  Co.  v.  B. 
R.  Co. 


465 

•  401 

543 

520,  522 

549 

373 

600 

&  O.  &  C. 

436 


Illinois  Com.  Co.  v.  Cleveland  Tel. 

Co.  647 

Illinois  Steel  Co.  v.  Schroeder         594 
Illinois  Trust  &  Savings  Bank  v. 


Doud 

509 

Imlay  v.  Huntington                175 

,  188 

V.  Norwich,  etc.,  R.  Co. 

044 

Imp.  Co.  r.  Tower's  Exr 

64 

Inbusch  r.  Farwell 

720 

Inchbald  v.  Barrington 

638 

Inchiquin  v.  French 

112 

Inderwick  v.  Inderwick 

111 

Indian  Land  Co.  v.  Shoenfelt 

621 

IngersoU's  Appeal 

90 

IngersoU  v.  Coram 

516 

Inghs  V.  Freeman 

669 

V.  Sailors'  Snug  Harbor 

192 

202 

Ingram  v.  Fraley 

131 

V.  Kirkpatrick 

120 

Inlow  V.  Christy                       372 

404 

Innerarity  v.  Bank 

419 

Innis  V.  Templeton 

449 

Insurance  Co.  v.  Caldwell 

150 

V.  Connelly 

64 

V.  Craig 

613 

V.  Railroad  Co. 

490 

V.  Waller 

107 

Ins.  Co.  of  North  Am.  v.  The 

Fidelity  Title  &  Tr.  Co. 

490 

Insurance   Co.   of   Pennsylvania 

V.  I^hcenix  Ins.  Co. 

269 

TABLE    OF    CASES. 


lxx> 


XV  n 


[The  references  are  to  the  pages.] 


Tiitcrnational  Bank  v.  Wilshire       252 
luteniational  Com.  Y.  W.  C.  A. 

V.  Y.  W.  C.  A.  652 

International,      etc.,     Ass'n      c. 

Watson  419 

International  Silver  Co.  v.  Rogers 

655,  656 
International  Trust  Co.  v.  Town- 

sond  Brick  &  Con.  Co.  509 

Int.  Trust  Co.  i\  United  Coal  Co.  507 

Ipswic  :  (Bank  of)  v.  Brock  496 

Ireland  (Bank  of)  v.  Perry  517 

Irick  V.  Black  56,  491,  500 

Irish-Amer.  Bank  c.  Ludlum         450 

Irnliam  v.  Child  245 

Ironmonger's  Co.  v.  Att.-Gen.         205 

Irrigation  Co.  v.  Garland  263 

Irvine's  Estate  228 

Irvine  v.  Campbell  519 

V.  Young  691 

Irving  V.  Hughes  602 

V.  Thomas  334 

Irwin's  Appeal  222,  227 

Irwin  V.  Harris  156 

V.  Irwin  313 

V.  I vers  137 

V.  Tabb  250 

Isaacs,  In  re  475 

Isham  V.  Bennington  Iron  Co.         425 

Isler  V.  Baker  715 

Itzkovitch  IK  Whitaker  669 

Iverson  v.  Willburn  302 

Ives  V.  Armstrong  569 

V.  Ashley  159,  160 

V.  Edison  580 

V.  North  Canaan  439 

Ivorvr.  Burns  108,112 


J.  V.  S.  609 

Jack  r.  National  Bank  272 

Jackman  v.  Mitchell  392 

V.  Ringland       135,  137,  141 

Jackson  v.  Burgot  40S 

r.  Carswell  234 

r.  Cary  94 

V.  Cleveland  154 

V.  Feller  144 


Jackson  v.  Hamm 

270 

V.  Hill 

182 

V.  Jackson 

717 

V.  Leek 

426 

V.  Lodge 

238 

V.  Lynch 

240,  248 

V.  Matsdorf 

145 

V.  Meyers 

94 

V.  Morse 

140 

V.  Petrie 

785,  786 

V.  Phillips  192,  195,  196,  199, 

201,202,204,  205, 

207 

V.  Pierce  89 

V.  Stanley  521 

V.  Stevenson  571 

V.  Thomson  157 

V.  Torrence  449 

V.  Town  386 

V.  Waldron  255 

V.  Walsh  378 

r.  Warren  234,  428 

V.  Willard  234,  237 

V.  Woodruff  5S() 

Jackson  Square  Ass'n  v.  Bartlett   l!)2 

Jacksonville      Natl.  Bank      v. 

Beesley  137 

Jacobs  V.  Amyatt  lOS 

Jacoway  v.  Hall  222 

Jager  v.  VoUinger  70 

James,  Matter  of  121,  123 

James  v.  Gibbs  182 

I'.  Kerr  241,  341 

V.  May  rant  176 

V.  Morgan  340 

V.  Newton  265 

V.  Rice  524 

V.  Scott  773 

V.  Smith  137 

Jameson  v.  Hayward  699 

Jamison  v.  Brady  166,  167 

V.  Culligan  359 

V.  Glascock  223 

Janes  t'.  Falk  117 

Janney  r.  Minn.  Indus.  Expos.        373 

January  v.  Martin  339 

Jaques  v.  Methodist  Church  (The)  174 

V.  Millar  571 

V.  Weeks  240,  421 


Ixxxviii 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Jarboe  v.  Hey  102 

V.  Severin  515 
Jarden  v.  Phil.,  W.  &  B.  R.  Co.        624 

Jarrah    Timber,    etc.,  Corp.    v. 

Samuel  239 
Jarrold  r.  Houlston  646 
Jarvis  v.  Binkley  256 
V.  Brooks  723 
V.  Chandler  603 
V.  Dutcher  525 
V.  Martin  586 
u.  Prentice  167 
Jason  V.  Eyres  239 
Jasper  Land  Co.  v.  Wallis  781 
Jefferson  v.  Bishop  of  Durham        614 
Jeffreys  v.  Jeffreys  546 
Jeffries  v.  Evans  273,  481 
Jencks  v.  Kearney  548 
Jenison  v.  Graves  135,  142 
Jenkins  r.  Davis     '  299 
V.  Jackson  632 
V.  McConico  175 
V.  Pye  341,  368 
V.  Rhodes  397 
V.  Walter  219 
V.  Wilkinson  269 
Jenks  V.  Fritz  300 
V.  Horton  732 
Jenkyn  i\  Vaughan  386 
Jenner  v.  Jenner  369 
V.  Morris  187 
Jenning  v.  Miller  562 
Jennings  v.  Baddeley  715 
V.  Broughton  334 
V.  Demon  245 
V.  Jennings  184 
V.  Moore  305 
V.  Ward  241,  242 
Jermyn  v.  Moffitt  265,  268 
Jernegan  v.  Osborn  261 
Jerome  v.  Carbonate  Nat.  Bank    421 
V.  Ross  621,  622 
Jersey  City  Print.  Co.  v.  Cassidy     628 
Jersey  (Earl  of)  v.  Dock  Co.    520,  521 
Jervis  v.  Bruton  356 
V.  Smith  571,  683 
Jervoise  v.  Duke  of  Northumber- 
land 96 
Jesus  Col.  (Case  of)  198 


Jesus  Col.  V.  Bloom 

52 

Jewett  V.  Black 

569 

V.  Boardman 

777 

Johannessen  v.  Munroe 

451 

John  Hancock  Ins.  Co.  v.  Dick 

310 

Johnes  v.  Lockhart 

168 

Johns  V.  Carroll 

142 

V.  James 

120 

V.  Norris                            65 

,568 

V.  Reardon 

504 

Johnson's  Ex'rs  v.  Ketchum 

691 

Johnson  v.  Ball 

112 

V.  Black 

607 

V.  Bragge 

564 

V.  Brooks 

541 

V.  Cawthorn 

523 

V.  Christian 

583 

V.  Clarkson                 112 

152 

V.  CoUey 

122 

V.  Conger 

553 

V.  Cook 

284 

V.  Cornett 

238 

V.  Cummins 

172 

V.  Cushing 

303 

V.  De  Pauw  University    197 
V.  Dougherty  147 

V.  Duer  604 

V.  Fesemeyer  371 

V.  Gallagher  171,  172 

V.  Gray  240 

V.  Hayward  137 

V.  Houston  235 

V.  Hubbell  563 

V.  Huber  609 

V.  Hughes  623 

V.  Hunt  347 

V.  Johnson        144,  204,  209, 
405,  482,  566,  616 
V.  Jones  311 

V.  Lee  87 

V.  Mayne  208 

V.  McKinnon  519 

V.  Medlicott  361 

V.  Mutual  Life  Ins.  Co.     449 
V.  Nat.       Bldg.,      etc., 

Ass'n  321 

V.  Newton  219 

V.  Railroad  Co.  547 

V.  Richardson  251 


TABLE    OF   CASES. 


Ixxxix 


[The  references  are  to  the  pages.] 


Johnson  v.  Rickett  543 

V.  Seabury  652,  653 

V.  Shrewsbury    &    Bir- 
mingham R.  Co.       553, 
665 
V.  Smith  116 

V.  Somerville  404 

V.  Stear  528 

V.  Wild  485 

V.  Wyatt  636,  682 

Johnson  Co.  v.  Bryson  265,  266 

Johnston  v.  Coney  138 

V.  Glancy  562,  563,  683 

V.  Laflin  418 

V.  Price  57,  689 

V.  Renton  541 

V.  Rowlands  125 

V.  Standard  Mining  Co.  403 
V.  Zane's  Trustees  102 

Johnstone  v.  Beattie  751 

Joliffe  V.  Baker  318,  330,  331 

Jolly  V.  Brady  663 

Jones's  Appeal  173,  226,  228 

Jones's  Estate  156,  504 

Jones  V.  Alab.  &  Vick.  R.  R.  Co.     360 
V.  Babcock  263 

V.  Bamford  418 

V.  Beach  678 

V.  BoUes  310 

V.  Boston  Mill  Corp.  544 

V.  Bright  625 

V.  Bullock  689 

V.  Byland  117 

V.  Byrne  545 

V.  Caldwell  476 

V.  Chanute  641 

V.  Clifford  295,  550 

V.  Creveling's  Ex'rs  746 

V.  Croucher  393 

V.  Degge  340 

V.  Fox  54 

V.  Foxall  222 

V.  Gilham  601 

V.  Green  731 

V.  Gregory  312 

V.  Hardesty  273 

V.  Jenkins  238 

V.  Jones  154,  390,  454 

V.  Light  387 


Jones  V.  Lloyd 

715 

V.  Lock 

116 

V.  Mackenzie 

539 

V.  McKee 

313 

V.  Meredith 

236 

V.  Middleborough,  etc.,  Co.  321 

V.  Morgan  96 

V.  Myrick  488 

V.  Neale  718 

V.  Newhall  56,  57,  554,  563 

V.  Nixon  778 

V.  Noble  551 

V.  North  663 

V.  Noy  715 

V.  Palmer  195 

V.  Parker  553 

V.  Powell  701 

V.  Reese  101 

V.  Renshaw  206 

V.  Rush  334 

V.  Smith  315,  422,  527 

V.  Stewart  328 

V.  Tapling  636 

V.  Thompson  360 

V.  Van  Doren         154,  408,  703 

V.Watford  198,212 

V.  Watkins  297 

V.  Weir  782 

V.  Williams  201 

V.  Zollicoffer  412 

Jope  V.  Morshead  694 

Jordan  v.  Abney  543 

V.  Cooper  3,  68 

V.  Deaton  552 

V.  Elliott  362 

V.  Sawkins  677 

V.  Sayre  238 

V.  Tel.  Co.  593 

V.  Trustees  206 

Jorden  i>.  Money  327 

Jordeson  v.  Sutton,  etc..  Gas  Co.  640 

Jorgensen  v.  Jorgensea  560 

Joselove  v.  Bohrman  609 

Joseph  V.  Macowsky  64 

Joslyn  V.  W^yraan  250 

Jossey  V.  Ga.  South.  Ry.  Co.         302 

Jourdan  v.  Dean  166 

Jourolmon  v.  Massengill  93 

Joy  V.  St.  Louis  554 


xc 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Joyce  I'.  De  Moleyns 

413 

Kearns  v.  Howley 

57£ 

1,669 

Joynes  v.  Statham 

544 

Kearny  v.  Jeffries 

761 

Jubber  v.  Jubber 

111 

Keates  v.  Lyon 

410 

Judd  r.  Harrington 

354 

Keating  v.  McAdoo 

167 

Judson  ('.  Corcoran 

275 

,414 

V.  Orne 

438 

Junker  v.  Rush 

493 

Keator  v.  Brown 

566 

Justice  V.  Wynne 

270 

Keck  V.  Bieber 

284 

Jutte  V.  Hutchinson 

403 

Keech  v.  Sandford 

155 

,  156 

Juvenal  v.  Jackson 

416 

Keeler  v.  Eastman 

616 

Juzan  V.  Toulmin 

302 

,320 

V.  Taylor 
j  Keeling  v.  Hoyt 

352 
393 

K. 

Keen  v.  Coleman 

449 

V.  Hartman 

449 

Kahau  v.  Booth 

243 

V.  Jordan 

280 

Kahn  v.  Peter 

444 

Keenan  v.  Handley 

773 

1).  Wakon 

65 

,  346 

V.  The  Missouri  Ins 

.  Co 

419 

Kallauder  v.  Neidhold 

583 

Keene's  Estate 

90 

Kalinutz  v.  Ins.  Co. 

442 

Keene  v.  Demelman 

301 

Kalteyer  v.  Wipff 

699 

V.  Gas  Co. 

354 

Kamena  v.  Huelbig 

273 

V.  Wheatley 

642 

,  648 

Kane  v.  Bloodgood 

76 

,316 

Keep  V.  Miller 

467 

V.  Gott 

463 

Keeton  v.  Spradling 

52 

V.  Vanderburgh 

615 

,660 

Keffer  v.  Grayson 

546 

V.  Va.  Coal  &  Iron  Co. 

777 

Keil  V.  Wright 

620 

Kane  Co.  v.  Herrington 

449 

Keily  v.  Monck 

349 

Kann  v.  Diamond  Steel  Co. 

653 

Keisselback  v.  Livingston 

401 

,  559 

Kannady  v.  McCarron 

234 

Keister  v.  Myers 

300 

Kansas  City,  F.  S.  &  M.  R 

.  R. 

Keith  V.  Brewster 

302 

Co.  V.  King 

605 

V.  Globe  Ins.  Co. 

298 

Kansas  &  Ark.  Val.  R.  R.  Co.  v. 

V.  Horner 

263, 

525 

Fitzhugh 

586 

V.  Scales 

206 

210 

Kansas,  etc.,  R.  Co.  v.  Glen  Jean, 

V.  Trapier 

702 

etc.,  R.  Co. 

623 

Kekaula  v.  Ehu 

550 

Kansas  Valley  Bank  v.  Rowell 

250 

Kekewich  v.  Manning 

118 

Karges  Furniture  Co.  v.  Amalga- 

Kelaher v.  Enghsh 

59 

mated  Union 

636 

Keller  v.  Ashford 

497 

Karn  &  Hickson  v.  Rorer 

Iron 

V.  Auble 

157 

Co. 

508 

Kellett  V.  Sumner 

119 

Karren  v.  Rainey 

562 

Kelley  v.  Kelley 

187 

Kaspar  v.  Dawson 

636 

V.  Stanbery 

421 

Kauffman's  .\ppeal 

535 

V.  York 

547, 

550 

Kaufman  v.  Cook 

562 

Kellogg,  In  re 

602 

Kawananakoa  v.  Puahi 

52 

Kellogg  V.  Larkin 

356 

Kay  V.  Scates         87,  90,.  92 

.94, 

777 

V.  School  Dist 

607 

Kean  r.  Johnson 

668 

V.  Smith 

424 

Kearney  v.  Macomb 

454, 

456 

Kellum  V.  Smith 

243 

r.  Sascer 

402 

Kelly  V.  Bradford 

555 

V.  Taylor 

326 

V.  Galbraith 

52 

0.  Vaughan 

755 

V.  Kelly 

138 

TABLE    OF   CASES. 


XCl 


[The  references  are  to  the  pages.] 


Kelly  V.  Lehigh,  etc.,  Co. 

540 

V.  McGuire 

340 

V.  Nichols 

195 

202 

V.  Ruble 

519 

V.  Wagner 

442 

V.  Ward 

302 

Kelsey  v.  Crowther 

549 

Kemble  v.  Kean 

352, 

662 

Kemmerer  v.  Kemmerer 

196 

Kemp  V.  Kemp 

85 

V.  London  &  B.  Ry. 

624 

V.  Pryor 

57 

V.  Sober 

661 

663 

Kempson  v.  Ashbee 

360 

V.  Kempson 

604 

Kemshall  v.  Stone 

571 

683 

Kendall,  Ex  parte 

504 

Kendall  v.  Almy 

552 

V.  Frey 

542 

V.  Honey 

702 

V.  Mann 

141 

142 

Kendallville  Co.  v.  Davis  &  Ran- 
kin 768 
Kennard'v.  George  307 
Kennedy  v.  Anderson  561 
V.  Currie                           360 
V.  Daly                             415 
V.  DeTrafford  157,  158,  374 
V.  Fury  82 
V.  Green                    418,  419 
V.  Hazelton                      554 
V.  Kennedy              370,  715 
V.  McCann                369,  681 
V.  McCloskey                    138 
V.  Strong                          219 
V.  Tiernay                        265 
V.  Ware            121,  272,  546 
Kennedy  Corp.  v.  Kennedy   655,  664 
Kenneweg  v.  Schilansky                  266 
Kenney  v.  Tucker                            342 
V.  Udall                       182,  185 
Kennicott  v.  Leavitt                       551 
Kenny  v.  Gillet                                  652 
Kensington,  Ex  parte                      524 
Kensington  (Lord)  v.  Phillips         553 
Kent  V.  Church  of  St.  Michael       280 
V.  Dean                           338,  421 
V.  Freehold       Land      and 

Brickmaking  Co.  377 


500 
386 


Kent  V.  Matthews 

V.  Riley 
Kentucky     Warehouse     Co.     v. 

Blanton  557 

Kenworthy  v.  Levi  219,  411 

Kenyon  v.  Farris  187 

Keokuk  (City  of)  v.  Love  484 

Keokuk  &  N.  W.  Ry.  Co.  v.  Don- 

nell  54,  55 

Keough  V.  Meyers  243 

Kepler  v.  Davis  223, 

Keppel  V.  Lehigh  C.  &  N.  Co.         620* 

Ker  V.  Wauchope  454 

Kern  v.  Hotaling  299 

V.  Howell  144 

Kerns  v.  Swope  418,  425 

Kerr's  Appeal  660 

Kerr  v.  Corporation  of  Preston     603 

V.  Day  468,  534 

V.  Gilmore  243 

V.  Steamboat  Co.  (The)         690 

V.  Trego  667 

Kerrich  v.  Bransby  312 

Kershaw  v.  Thompson  580 

Ketcham  v.  Brazil  Block  Coal  Co.  599 

Ketchum  v.  Duncan  450 

Kettering  v.  Eastlack  544 

Kettlewell  v.  Barstow  764 

V.  Watson  409,  410, 

417,418 

Kevan's  Appeal  452 

Kevans  v.  Joyce  341 

Key  V.  Griffin  460 

V.  Hughes's  Ex'rs  222 

Keys's  Estate  269 

Keys  V.  Test  416,  421 

V.  Williams  524 

Keyser  v.  Mitchell  102,  103 

V.  Rice  73 

Keyzey's  Case  487,  513 

Kibbe  v.  Dunn  238 

Kidd  V.  Horry  670 

Kidder  v.  Barr  563 

Kidney  v.  Coussmaker  461) 

Kidwell  V.  Godfrey  95 

Kilbourn  v.  Sunderland  54,  58 

Kildare  (Earl  of)  v.  Eustace       71,81 

Kile  V.  Fleming  175 

Kilgannon  v.  Jenkinson  777 


xcu 


TABLE   OF   CASES. 


[The  references  are  to  the  pages.] 


Killian 

V.  Badgett 

359 

King  V.  Roney 

305 

V.  Effingham 

599 

V.  Ruckman    535,  552 

,566 

,569 

Kilpatrick  v.  Kilpatrick 

752 

V.  Savery 

371 

V.  Strizier 

297 

V.  Talbot 

219 

,220 

Kilpin 

V.  Kilpin 

111 

,112 

V.  Townshend 

778 

Kimba 

V.  Grafton  Bank 

54 

King  &  Holland  (The) 

84 

Kimball  v.  JEtna  Ins.  Co. 

327 

Kingman  v.  Mowry 

387 

I'.  Morton 

108 

King  of  Spain  v.  Hallet 

767 

V.  Ranney 

161 

King  of  Two  Sicilies  v.  Wilcox 

765 

V.  Reding 

219 

Kingsbury  v.  Burnside 

108 

V.  Tooke 

549 

V.  Burrill 

265 

Kimberley  v.  Fox 

777 

Kingston's    Case    (Duchess 

of) 

V.  Jennings 

352 

,662 

435 

436 

,4.50 

Kimble 

V.  Wotring 

495 

Kinike's  Estate 

209 

Kimm 

V.  Weippert 

175 

,  176 

Kinkaid  i'.  Hiatt 

593 

Kimmel  v.  McRight 

141 

Kinkead  v.  Ryan 

495 

t'.  Smith 

326 

Kinnaird  v.  Miller's  Ex'rs 

192 

Kimmell  v.  Willard 

236 

Kinne  v.  Webb 

403 

Kincaid  v.  Conly 

309 

,314 

Kinner  v.  Ry.  Co. 

65 

V.  Dormey 

444 

Kinney  v.  Basch 

654 

V.  Price 

322 

V.  Redden 

549 

V.  Wall-Paper  Co. 

721 

V.  Service 

444 

Kine  v. 

Turner 

326 

Kinsler  v.  Clarke 

660 

King's 

Estate 

179 

Kintzing  v.  McElrath 

328 

Trusts,  In  re 

350 

Kip  r.  Bank  of  New  York 

148 

,219 

King  V. 

Baldwin               500 

,587 

,690 

V.  Deniston 

227 

V. 

Bardeau 

565 

Kirby  v.  Boyette 

174 

V. 

Bill 

428 

V.  Harrison 

682 

V. 

Cushman 

156 

V.  Raynes 

251 

390 

V. 

Denison 

111 

151 

V.  Taylor 

368 

V. 

Goodwin 

732 

Kirchman  v.  Standard  Coal  Co. 

446 

V. 

Graves 

243 

Kirk  V.  Clark 

385 

V. 

Hamilton 

147 

549 

V.  Hartman 

447 

V. 

Hamlet 

342 

Kirkland  v.  Downing 

550 

V. 

Hawkins 

264 

Kirkman  v.  The  Bank 

491 

V. 

Hoi  brook 

300 

V.  Vanlier 

687 

V. 

Jenkins 

82 

Kirkpatrick  v.  Bonsall 

346 

V. 

King 

457 

781 

V.  Davidson 

108 

V. 

Lucas 

172 

V.  McDonald 

57 

147 

V. 

Marissal 

730 

i;.  Pettus 

552 

V. 

McVickar 

504 

V.  Reeves 

323 

V. 

Miller 

636 

Kirksey  v.  Fike 

542 

V. 

Mitchell 

151 

Kirwan's  Trusts,  In  re 

398 

V. 

Mollohan 

190 

Kirwan  v.  Cullen 

363 

V. 

Morford 

545 

V.  Murphy 

58, 

607 

V. 

Ordway 

373 

Kisler  f .  Kisler                  115, 

135, 

137 

V. 

Payan 

56 

Kisor's  Appeal 

667 

V. 

Pillow 

71 

672 

Kissel  r.  Lewis 

637 

V. 

Remington 

223 

Kister bock's  Appeal 

315, 

318 

TABLE    OF   CASES. 


XClll 


Kistler's  Appeal 

326, 337 

Kistler  v.  Weaver 

55,  622 

Klatt  V.  Dummert 

273 

Klein  v.  Borchert 

370 

V.  Livingston 

Club 

626 

Kline's  Appeal 

144 

Kline  v.  Kline 

366 

394, 397 

V.  McDonnell 

141 

V.  Ragland 

141, 

144,  145 

V.  Vogel 

61 

[The  references  are  to  the  pages.] 

Kortright  v.  Buffalo 
Kost  V.  Bender 
Kountz  V.  Kirkpatrick 
Kountze  v.  Hotel  Co. 


Klopenstein  v.  Mulcahy  335 

Klopp  V.  Lebanon  Bank  491 
Knapp  V.  Bailey       416,  418,  421,  441 

V.  Transfer  Ry.  Co.  631 

Knappen  v.  Freeman  336 

KnatchbuU  v.  Hallett  788 
Kneeland  v.  American  Loan  & 

Trust  Co.  509 
Knevals  v.  Florida  Cent.  &  Pen. 

R.  R.  Co.  229 

Knight,  iMatter  of  219 

Knight  V.  Boughton         110,  125,  131 

V.  Glasscock  299 

V.  Knight  125 

V.  Selby  112 

V.  Simmonds  663 

Knott,  Ex  parte  412 

Knott  V.  Morgan  650 

Ivnowack,  Matter  of  749,  752 

Knowles  v.  Law  ton  252 

Knowlton  v.  Walter  235 

Knox  V.  Armistead  223 

V.  Easton  234 

V.  Jordan  175 

V.  Mackinnon  220,  225 

V.  New  York  625 

V.  Singmaster  364,  368 

Knox  Co.  V.  Harshman  586 

Koboliska  v.  Swehla  498 

Koehler  v.  Hughes  496 

Ka?nig's  Appeal  91,179 

Koenig  v.  Dohm  563 

Kohler  Mfg.  Co.  v.  Beshore     655,  666 

Kohn  V.  McNulta  17 

Kommer  v.  Harrington  344 

Koockogey  v.  Flewellen  54 

Kopper  V.  Dyer  287 

Korne  v.  Korne  297 

Kornegay  v-  Everett  294 


270 
322 
256 
782 
Kowalke  v.  The  Mil.,  etc.,  Co. 

291,303 

Kradwell  v.  Thiesen  352 

Kraft  w.  Neuffer  119 

V.Welch  661,663 

Kramer  v.  Arthurs  412 

V.  Wilson  244 

Krankel 's  Ex'xv.  Krankel       111,117 

Kreamer  v.  Earl  549 

Kreb's  Estate  110 

Kreiser's  Appeal  460 

Kretchmar  v.  Ruprecht  586 

Krider  v.  Lafferty  421 ,  427 

KroII  v.  Coach  155 

Kronheim  v.  Johnson  106 

Krueger  v.  Armitage  313 

Kruse  v.  Steffens  159 

Krutz  V.  Gardner  248 

Kuelkamp  v.  Hidding  336 

Kuhl  V.  Mayor  of  Jersey  City         446 

Kuhn's  Appeal  342 

Estate  256, 257 

Kuhn  V.  Eppstein  566 

V.  Newman  90,  92,  94 

Kuhne  v.  Law  723 

Kuhnes  v.  Cahill  268 

Kulp  V.  March  113 

Kunert  v.  Strong  243 

Kunkel  v.  Wherry  283 

V.  Wolferberger  243 

Kuntzelman's  Estate  91,179 

Kurdy  v.  Rogers  552 

Kyes  V.  St.  Croix  Co.  607 

Kyle  V.  Barnett  222 

V.  Frost  54 

V.  Perdue  374 

V.  Perfection  Mattress  Co.     653 

Kymburley  v.  Goldsmith  12,  532 

Kyner  v.  Boll  298 

V.  Kyner  490,  498 


L. 


Laccy,  Ex  parte 
Lacey  v.  Hill 


378 

722 


XCIV 


TABLE    OF    CASES. 

[The  references  are  to  the  pages.] 


Lackey's  Appeal  469 

Lackland  r.  Walker  200,  212 

Laclede  Bank  v.  Schuler  268 

Lacombe  v.  Forstall's  Sons  55 

Lacon,  In  re  747 

Lacon  v.  Allen  525 

V.  Briggs  60 

V.  Lacon  747 

Laconia  Savings  Blk.  v.  Vittum     299 
Ladd  V.  Chamber  of  Commerce      484 
V.  Harvey  780 

V.  Osborne  620 

Ladley  v.  Creighton  527 

Ladue  v.  Railroad  Company  250 

Lady  Forrest  Gold  Mine  377 

Lady  Hastings,  In  re  171,  172 

Ladywell  Mining  Co.  v.  Brookes    377 
Lafean  r.  Weeks  656 

Lagarde  r.  Anniston,  etc.,  Co.        156 
Lahey  v.  Broderick  135,  145 

Laidlaw  v.  Organ  320,  328 

Laing  v.  Evans  446 

Laird's  Appeal  465 

Laird  v.  Birkenhead  Railway  Co.  553 
Laird,   etc.,   Co.    v.    County   of 

Pine  605 

La  Junta  &  Lamar  Canal  Co.  v. 

Hess  555 

Lake  v.  Gibson  64,  718 

V.  Meacham  402 

Lake  Erie  &  W.  R.  Co.  v.  City  of 

Fremont  635 

V.  Michener  667 

Lake  Roland  Elev.  Ry.  Co.  v. 

Hibernian  Soc.  440 

Lake  Shore  &  M.  S.  Ry.  Co.  v. 

Richards  676 

Lamb's  Appeal  222 

Lamb  v.  Harris  302 

Lambe  v.  Fames  125,  126 

Lambert  v.  Railroad  620 

Lamberton  v.  Dunham  331 

V.  Youmans    61,  104,  403 
Lambton  v.  Mellish  638 

Lammon  v.  Hartsook  445 

Lammot  v.  Bowly  442 

Lamon  v.  McKee  268 

Lamont  v.  Stinson  418 

Lampet's  Case  255 


Lamson  v.  Drake 
Lamson  v.  Moffat 

V.  Sutherland 
Lancaster  v.  Dolan 


.236 

261 

249 

173,176,393, 

407, 408 
Lancaster    Co.     Nat.     Bank    v. 

Huver  530 

Lancaster  Trust  Co.  v.  Long  337 

Land  &  Water  Co.  v.  Sup.  Ct.  of 

Fresno  County  569 

Land  Co.  v.  Hill  423 

Landell  v.  Hamilton  663,664 

Landes  v.  Brant  421,  427 

V.  Walls  56 

Landon  v.  Hutton  121 

Landreth  (A.)  Co.  v.  Schevenel       327 

Lane's  Appeal  734 

Lane  v.  Capsey  630 

V.  Lane's  Adm'x  304 

V.  Newdigate  575,  578,  666 

V.  Page  398 

Lang  V.  Waring  718 

Langdale  v.  Briggs  774 

Langdou  r.  Blackburn  313 

V.  Woolfolk  537 

Langford  v.  Barnard  233 

r.  Perrin  485 

Langstaffe  v.  Fenwick  328 

Langton  v.  Horton  259 

V.  Waring  266 

Lanigan  v.  Bradley  Co.  268 

Lanning  v.  Smith  67 

Lansdale  i'.  Smith  317 

Lansdown  r.  Lansdown  294 

Lansing  v.  Eddy  586,  587 

V.  Starr        '  60, 316 

Lanyon  v.  Chesney  566 

Lanzit  v.  Sefton  Mfg.  Co.  353 

Lappin  r.  Crawford  362 

Lare  v.  Harper  and  Bros.  649 

Larkey  v.  Gardner  768 

Larkins  v.  Rhodes  142 

Larrabee  v.  Hascall  122,  267 

V.  Larrabee  341 

Larrowe  v.  Beam  413,  705 

Lasher  v.  Loeffler  550 

Lashmar,  In  re  99 

La  Sociedad  "  Germinal "  v.  Nabla  651 

Lassiter  v.  Dawson  182 


TABLE    OF    CASES. 


xcv 


[The  references  are  to  the  pages.] 


Late  Corporation  of  the  Church 
of  Jesus  Christ  of  Latter  Day 
Saints  v.  United  States  205 
Latham  v.  Henderson  138,  140 
Lathrop  and  Dale's  Appeal  493 
V.  Gilbert  146,  147 
Latimer  v.  Marchbanks  443,  552 
V.  Irish-American  Bank     52 
Latrobe  v.  Carter  458 
V.  Tieman  227 
Latshaw's  Appeal  693 
Latta  V.  Kilbourn  157 
Lattin  v.  Hazard  534 
Laughman's  Appeal  654 
Laurel  Creek  Co.  v.  Browning         289 
Laurens  v.  Lucas  555 
Laverty  v.  Moore  444,  536 
Law's  Estate  219 
Law  V.  Grant  328,  329 
V.   Local     Board    of    Red- 
ditch  284 
Lawes  v.  Bennet  468,  475 
Lawley  v.  Hooper  309 
Lawlor  v.  Merritt  649 
Lawrence  Co.  Bank  v.  Arndt  443 
Lawrence  v.  Blow  484 
V.  Campbell  765 
V.  Clark  392 
V.  Hammett  708 
V.  Lawrence  455 
V.  Luhr  440 
V.   Saratoga   Lake   R. 

Co.  554 

V.  Tucker  250 

Lawson  v.  Hays  56 

Lay  V.  Brown  182 

Laycock  v.  Johnson  517 

Lazarus 's  Lessee  v.  Bryson  378 

Lazarus  v.  Bryson  159 

V.  Lazarus  137,  139 

V.  McGuirk  586 

Leach  r.  Ansbacher        412,421,422 

V.  Beattie  698 

V.  Curtin  247 

Leahey  v.  Witte  337 

Leaird  v.  Smith  568 

Leake  v.  Robinson  152 

Lear  v.  Chouteau  545 

Learned  v.  Holmes  313 


Learoyd  v.  Halifax  Joint  Stock 

Banking  Co.  766 

Leary  v.  King  395 

Leather  Cloth  Co.  v.  Am.  Leather 

Cloth  Co.  650,  652,  657,  658 

Leather  Cloth  Co.  v.  Lorsont  353 

Leavitt  v.  Windsor  Land  &  In- 
vestment Co.  609 
Leaycraft  r.  Hedden  175 
Lechmere  v.  Earl  of  Carlisle           742 
Le  Comte  v.  Freshwater                   707 
Ledyard  v.  Butler                            393 
V.  Phillips                          292 
Lee's  Admrs.  v.  Reed                       691 
Estate                                      179 
Lee  V.  Fernie                                    400 
V.  Hollister           ,                     382 
V.  Howe                                      566 
V.  Jones                                      320 
V.  Kerby                                     339 
V.  Kirby                                     547 
V.  Lee                                         481 
V.  Overstreet                             283 
V.  Percival                          294,  295 
V.  Prieaux                                  168 
V.  Read                                       765 
V.  Stone                              249,  552 
Leech  v.  Schweder                          661 
Leeds  and  Hanley  Theatres,  In 

re  377 

Leeds  v.  Amherst  442 

Leeds  (Duke  of)  v.  Corp.  of  New 

Radnor         708 
V.  Powell  708 

Leeds  Est.  Build.  &  Inv.  Co.  v. 

Shepherd  222 

Leek  v.  Cowley  300 

Leeper  v.  Hersman  438 

V.  Taylor  117,  121 

Lees  V.  Wetmore  778 

Leete  v.  Pilgrim  Cong.  Soc.  638 

Lefevre's  Appeal  718 

Lefferson  r.  Dallas  562 

Legard  v.  Hodges  195 

LeGendre  v.  Byrnes  374 

Legg  V.  Goldwire  98 

Legge  IK  Asgill  196 

100, 141, 143 
V.  Hunter  225 


Leggett  V.  Dubois 


XCVl 


TABLE    OF    CASP]S. 


[The  references  are  to  the  pages.] 


Leggett  I'.  Perkins 


95 


Lehigh   Valley  R.   R.   Company 


V.  Woodring 


V. 


256 
Bam- 
322,  332 
580 


Lehigh  Zinc  &  Iron  Co. 

ford 

Le  Hote  v.  Boyet 

Lehman  v.  Gunn  386 

V.  Roberts  778 

Lehr  v.  Beaver  188 

Lei  by  v.  Wolf  426 

Leicester  r'.  Front  Imp.  Co.             549 

Leigh  V.  Crump  545 

V.  Harrison  102 

Leighton  v.  Young  64 

Leiper's  Appeal  464 

Ex'rs  V.  Irvine  464 

Leisenring  ?'.  Black  159 

Leitch  V.    Northern   Pacific   Ry. 

Co.  266 

V.  Wentworth   '  605 

Leitz  V.  Hohman  479 

Lembeck  v.  Nye  620 

Lemke  v.  Dietz  652 

Lemmon    v.    Town    of  Guthrie 

Centre  620 

Lemon  r.  Randall  550 

Lench  v.  Lench  150 

Le  Neve  v.  Le  Neve  407,  408,  410, 

417, 418, 419,  420,  421,  423,  426 


Lennig's  Appeal 

Estate 


118 

206,  213,  256, 

273, 513, 546 

Lennon  v.  Lake  Shore  Ry.  577 

Lenox  v.  Roberts  276 

Leonard's  Lessee  v.  Diamond  89 

Leonard  v.  Board  of  Directors  553 

V.  Poole  65 

V.  Springer  323 

Leopold  V.  Silverman  529 

Lepage  v.  McNamara  206 

Le  Roy  v.  Corp.  of  New  York  605 

Lesesne  v.  Witte  127 

Leslie  v.  Guthrie  257 

V.  Lorillard  355 

Lessee  of  Heister  v.  Fortner  425 

Lessig  V.  Langton  65 

Lester  r.  Kinne  562 

L'Estrange  c.  L'Estrange  264 

Letcher  v.  Letcher  141 


Letherman  v.  Hauser  625 

Letton  ('.  Goodden  597 

Leupold  r.  Weeks  267,  516 

Leuty  V.  Hillas  302 

Levara  v.  McNeny  371 

Leverton  v.  Waters  695 

Levi  V.  Evans  111 

Levick  w  Brotherline  335 

Levy  V.  Abercorris  Co.  542 

V.  Bank  of  United  States  3 

V.  Holberg  422 

V.  Iroquois  Building  Co.        555 

?'.  Levy  212,  216 

Levystein  Bros.  v.  O'Brien  586 

Lewie  v.  Hallman  67 

Lewin's  Trusts,  In  re  184 

Lewis  and  Nelson's  Appeal  66 

Lewis  V.  Adams  167 

V.  Baird  425 

V.  Baker  442 

V.  Boguechitto  604 

V.  Broun  371 

V.  Bryce  167 

r.  Curnutt  115,    119 

V.  Elrod  168 

V.  Ford  446 

V.  Gollner  663 

r.  Herndon  555 

V.  Holdredge  273 

V.  Lewis  302,  307 

V.  Love's  Heirs  39:5 

V.  Matthews  167,  16S 

V.  McGrath  390 

V.  McLemore  330 

V.  Mew  42S 

V.  Nangle  235 

V.  Palmer  491 

V.  Pead  361 

V.  Reid  225 

V.  Spencer  606 

V.  Tobias  680 

V.  White  142 

!'.  Yale  175 

Leyson  v.  Davis  122 

Libby  v.  Rosekrans  779 

Liberty  Bell  (The)  606 

Lick  I'.  Munro  43S 

Lickbarrow  v.  Mason  394 

Liddard  ;;.  Liddard  1-31 


TABLE    OF   CASES. 


XCVll 


[The  references  are  to  the  pages.] 


Liddell's  Ex'rs  v.  Starr 

781 

Lippincott  v.  Barton 

690 

Lidderdale  v.  Montrose 

264 

V.  Evans 

730 

V.  Robinson 

493 

V.  Mitchell 

169,  174 

Lies  V.  Stub 

296 

V.  Whitman 

402 

Life  Association  of  America  v. 

Liptrot  V.  Holmes 

89 

Boogher  670 
Life  Association  of  Scotland  v. 

McBlain  313 

Life  Ins.  Co.  v.  Bangs  586 

V.  Parker  &  Co.  490 

Light  V.  Zeller  144 

V.  Light  360 

Lightner's  Appeal                   115,  266 

Lightner  v.  Mooney  425 

Ligon  V.  Ligon  736 

Liles  V.  Terry  371 

Liley  v.  Hey  192 

Lillard  v.  Oil  Co.  733 

V.  McGee              382,  387,  729 

V.  Turner  175 

Lillia  V.  Airey  733 

Lilly  V.  Kroesen  692 

Lime  &  Cement  Co.  v.  Citizens' 

Bank  54 

Lincoln  v.  Rutland  R.  Co.  597 

Lindblad  v.  Board  of  Education  607 

Lindelse  v.  Realty  Co.  289 

Lindley  v.  O'Reilly  71 

Lindsay  v.  Federation  of  Labor  627 

V.  Gibbs  259 

V.  Harrison  179 

V.  Jackson  481 

V.  Morse  497 

V.  Pleasants  470 

Lindsey  v.  Lindsey  335 

V.  Rankin     "-  415 

Lindsley  v.  Dodd  104 

V.  Ferguson  315 

V.  Union  Mining  Co.  72 

Line  i'.  McCall  265 

Lines  v.  Darden  126,  128 

V.  Lines  119 

Lingen  v.  Simpson  712 

Lingonner  v.  Ambler  448 

Linker  v.  Smith  394 

Linn  v.  Neldon's  Admrs.  586 

Linnel  v.  Hudson  141 

Lins  V.  Lenhart  187 

Linton  v.  Safe  Deposit  Co.  244 

G 


Liquidation     Estates     Purchase 

Co.  V.  Willoughby  252 

Liskey  v.  Snyder  240 

Lisle  V.  Liddle  681 

V.  Reeve  240 

Listman  Mill  Co.  v.  Wm.   List- 
man  Milling  Co.  658 
Litchfield,  In  re  722 
Little,  In  re  178 
Little  V.  Braun                                 245 
V.  Brown  520 
V.  Chadwick                  149,  150 
I'.  City  of  Bessemer  56 
V.  Ragan                                  382 
V.  Wilcox                                   90 
Littleton  v.  Burgess  59 
Litton  V.  Baldwin                               176 
Livermore  v.  Aldrich                        141 
V.       Middlesborough, 

etc.,  Co.  321 

Liverpool    Association    v.    Fair- 
hurst  449 
Liverpool,  etc.,  Co.  v.  Hunter        603 
Liverpool  Wharf  v.  Prescott           444 
Livesley  v.  Johnston  539 
Livey  v.  Winton                       51,  688 
Livezey's  Appeal  90 
Livingston  v.  Dean                           274 
V.  Hubbs                       316 
V.  Livingston        188,  281, 
620,  708 
V.  Newkirk                     511 
V.  Reynolds                    616 
V.  Tompkin.                  288 
Llewellyn  v.  Cauffiel                         634 
V.  Mackworth                  455 
Lloyd  V.  Brewster                             403 
V.  Brooks                                 116 
V.  Dimmack                           772 
V.  Galbraith                   488,  494 
V.  London,  Chatham  and 

Dover  R.  Co.  663 

V.  Lynch  137,  142,  158 

V.  Wait  235 


XCVlll 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Lloyds'  Bank,  Limited,  v.  Bul- 
lock 274,  392, 414 
Lobdell  V.  Baker  320 
V.  State  Bank  of  Nauvoo  392 
Lock  V.  Fulford  488 
Locke  V.  American  Ins.  Co.  329 
V.  Whiting  402 
Lockhart  v.  Leeds                    154,  337 
Locklin  v.  Davis                               449 
Lockwood  V.  Ewer                           528 
V.  Lockwood                  363 
Loder  v.  Allen  67 
Loewe  v.  Lawler                      356,  627 
Loewenstein  v.  Biernbaum             785 
Loewer  v.  Harris                      329,  331 
Loften  V.  Whitboard                        145 
Lofton  V.  Sterrett                             142 
Loftus  V.  Heriot                               177 
Logan  V.  Cable  Co.                           591 
V.  Gardner            438,  445,  450 
V.  Logan                186,  383,  732 
V.  Neill                                     62 
V.  Simmons           394, 395,  396 
Logue's  Appeal  .                              311 
Logue  V.  Langan                              562 
Lohman  v.  Crouch                             67 
Loker  v.  Rolle                                     54 
Lomax  v.  Ripley                     112,  151 
Lombard  v.  Morse                             397 
Lomerson  v.  Johnston            320,  362 
London  v.  London                           703 
London    Bank    of    Australia    v. 

Lempriere  171 

London,  etc.,  R.  Co.  v.  Lanca- 
shire, etc.,  R.  Co.  619 
London  (Mayor  of)  v.  Hedger       617 
London   (University  of)  v.  Yar- 
row 197 
Lone  Star  Salt  Co.  v.  Ry.  Co.         553 
Long's  Appeal                                  696 
Long  V.  Hartwell                             299 
V.  Kasebeer                            622 
V.  Kendall                               322 
V.  King                            140,  144 
V.  Majestre                              687 
V.  McKay                                144 
V.  Perdue                                  162 
V.  White                                  166 
V.  Wier                                  458 


Long  V.  Woodman  327 

Longley  v.  Griggs  485 

Longwell  v.  Bentley  695 

Longwood  Valley  R.  Co.  v.  Baker  577 
Lonsdale  Co.  v.  Woonsocket  593,  595 
Loog  V.  Bean  574 

Loomer  v.  Wheelwright  252 

Loomis  V.  Loomis  272 

V.  Missouri  Pac.  Ry.  Co. 

61,317 

V.  Rosenthal  61 

Lord's  Appeal  560 

Lord  V.  Hull  713 

V.  Jeffkins  343 

V.  Lord  455 

Lord  Berkley     v.     Countess     of 

Shrewsbury  12 

Cranston  v.  Johnston  71 

Hinchinbroke  v.  Seymour     399 

Kensington  v.  Phillips  553 

Manners  v.  Johnson      661,663 

Montague  v.  Dudman    572,  736 

Perceval  v.  Phipps  648 

Portarlington  v.  Soulby         603 

Stratheden  and  Campbell, 

In  re  200 

Lorillard  v.  Coster  463 

Loring  ?'.  Hildreth  776 

V.  Loring  126 

Lorings  v.  Marsh  192,  206 

Lothrop  V.  Marble  563 

Lottimer  v.  Lord  779 

Loucheim  Bros.'  Appeal  392 

Louden  v.  Blythe  362 

Loudenslager  v.  W.  H.  Land  Co.  374 

Louisville  (Bank  of)  v.  Hall  718 

Louisville  Ry.  Co.  v.  Louisville 

Trust  Co.  659 

Louvalle  v.  Menard  698 

Love  V.  Ardmore      Stock       Ex- 
change 268 
V.  Love  119 
V.  Sierra    Nevada    Mining 

Co.  305 

V.  Watkins  543 

Loveland  v.  Cooley  501 

Lovell  V.  Galloway  56,  762 

V.  Minot  221 

Loveridge  v.  Cooper  271 


TABLE    OF    CASES. 


XCIX 


[The  references  are  to  the  pages.] 


Lovett  I'.  Lovett 

776 

Loving  V.  Hunter 

96 

Lou-  V.  Boiiverie 

332 

445 

V.  Holmes 

696 

,699 

V.  Pew 

257 

Lowe  V.  Allen 

297 

V.  Baker 

603 

V.  Jones 

147 

V.  Lowry 

594 

V.  McLeod 

187 

V.  Peers 

347 

V.  Prospect  Hill  Cemetery 

Ass'n 

635 

V.  Trundle 

330 

Lowell  V.  Daniels 

449 

Lowell's  Appeal 

198 

Lowman  v  Crawford 

58 

Lowndes  v.  Bettle 

621 

623 

Lowry  v.  The    Commercial 

and 

Farmers'     Bank     of 

Baltimore 

410, 

411 

V.  McGee 

137 

V.  Spear 

341 

Lowther  v.  Carlton 

414 

Loyd  V.  McCaffrey 

268 

Lozear  v.  Shields 

359 

Lozier's    Ex'rs    v.    Van    Saun's 

Admrs. 

599 

L.  S.  &  M.  S.  Ry.  Co.  v.  Hoffert 

552 

Lucan  (Earl  of) ,  In  re 

118 

545 

Lucas  V.  Atwood 

720 

V.  Lockhart 

126 

Luckett  V.  Williamson 

557, 

563 

Luco  1'.  De  Toro 

111 

Ludington  f>.  Elizabeth 

777 

,                   V.  Ford 

301 

307 

V.  Patton      317, 

372, 

443 

Ludlam  v.  Buckingham 

.549 

Ludlow  V.  Simond 

690 

Ludlow  &  Cincinnati  Coal  Co   v. 

City  of  Ludlow 

605 

Ludwig  V.  Highley 

430 

Luff  V.  Pope 

266 

Luff  berry's  Appeal 

469 

470 

Lukens's  Appeal 

219 

Lukers  v.  Sturtevant 

641 

Lum  V.  McEwen 

358 

Lumber  Co.  v.  Hines 

620 

V.  Newcomb 

271 

Lumberman's  Ins.  Co.  v.  Sprague  490 
Lumbermen's   Mut.    Ins.   Co.   v. 

Railroad  Co.  491 

Lumley  v.  Wagner  662,  6(i5 

Lunn  V.  Thornton  257 

Lupton  V.  Janey  691,  692 

V.  Lupton  736 

Lush's  Trusts  184 

Lusk  V.  Lewis  152 

Lutz  V.  Matthews  141 

Lyde  ?'.  Mynn  262 

Lydick  v.  Gill  440 

Lyle  V.  Addicks  52 

V.  Ducomb  250 

Lyman  v.  Gedney  286,  542,  556 

V.  Little  676 

V.  United  Ins.  Co.  300,  307 

Lyme  v.  Allen  583,  58(5 

Lynch  v.  Herrig  140 

V.  Rosenthal  345 

V.  Union    Inst,    for  Suv.  ()23 

V.  Versailles  Fuel  Gas  Co.  2S3 

V.  Willard  690 

Lynde  v.  Lynde  264 

Lyne's  Ex'rs  ik  Crouse  173 

Lynn's  Appeal  616 

Lynn  v.  Culbertson  346 

V.  Gephart  463 

V.  Hockaday  563 

V.  Lynn  115 

Lynn  Shoe  Co.  v.  Auburn-Lynn 

Shoe  Co.  654 

Lyon's  Appeal  583,  608 

Lyon  V.  Clark  519 

V.  Gombert  778 

V.  Home  363 

V.  Sanders  292 

Lyons  (Mayor   of)    v.   Advocate 

Gen.  of  Bengal  205 

V.  Bass  137 

i;.  Importers'  Bank  597 

V.  Wilkins  627,  628 

Lytle  V.  R.  R.  Co.  627 

M. 

Mabb  V.  Merriam  673 

Macaulay  v.  Philips  185 

Macauley  v.  Smith  241 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Macbryde  v.  Weeks  569 

MacConnell  v.  Lindsay  174 

V.  Wright  169,  174 

Maccubbin  v.  Cromwell  108,  109 

MacDonough  v.  Gaynor  785,  786 

Macduff,  In  re  196,  208 

Macduff  V.  Macduff  196,  208 

MacGregor  v.  MacGregor  73 

Machir  v.  Burroughs  174,  176 

Machold  v.  Farnan  569 

Mack's  Appeal  11.3 

Mack  V.  Hill  67 

V.  Mcintosh  53,  571,  684 

V.  Village  of  Frankfort  314 


V.  Wetzlar 
Mac  kail  v.  Casilear 
V.  Mackall 
Mackason's  Appeal 
Mackay  v.  Martin 
Mackey  i\  Maxim 
MacKenzie  v.  Trustees 
Mackreth  v.  Symmons 


234 
682 
365 
101 
325 
778 
207 
518,  520, 
521,  522 
Maclean  v.  Fitzsimmons  681 

Macmillan  &  Co.  v.  Dent  648 

Macomber  r.  Peckham  559 

Macon  (Bank  of)  v.  Bartlett  403 

Macoupin  Co.  ?•.  People  340 

Mactavish  v.  Kent,  Circuit  Judge  585 
Maddever,  In  re  61 

Maddison  v.  Alderson  560 

Maddox  v.  Maddox  349 

Madeira  v.  Hopkins  552 

Madison  ?'.  Copper  Co.  632 

Madison  Athletic  Ass'n  v.  Brit- 
ton  542,  548 
Madison  Av.  Church  v.  Madison 

Av.  Church  57 

Madison  Co.  v.  People  340 

Mafhtt's  Admr.  i-.  Rynd        107,  108, 

245,  250,  677 
Magaw  I'.  Lamloert 
Magel  V.  Milligan 
Maggini  v.  Pezzoni 
Magie  v.  Reynolds 
Magill  V.  Brown 


279 
449 
360 
273 
192,  200,  213,  216 


Magner  v.  Crooks 
Magniac  r.  Thomson 
Magruder  v.  Peter 


100 
59,60 


■^2 


Maguire  v.  Heraty  69,  550 

V.  Maguire  749,  751,  752 

V.  Smock  353 

Magwood  V.  Johnston  173,  176 

Mahan  i'.  Mahan  121 

('.  Smith  271 

Mahana  v.  Blunt  562 

Maher  v.  Aldrich  146 

V.  Hibernia  Ins.  Co.  301 

Mahon  r.  Leech  548 

Mahoney  r.  Middleton  427 

Mahorner  v.  Harrison  140 

Mainland  v.  Upjohn  241 

Malim  v.  Keighley  110,  125,  128 

Malin  v.  Malin  535 

Malins  i\  Brown  563 

V.  Freeman  550 

Mallalieu  v.  Hodgson  451 

Mallim  v.  Wenham  265 

Malloney  v.  Horan  448 

Mallory  v.  Kessler  442 

V.  Leach  320 

V.  Vanderheyden  174 

Mallow  V.  Walker  384 

Malloy  V.  Malloy  138 

Malone  v.  Danforth  244 

V.  Philadelphia  284 

Maloney  v.  Terry  57 

Mammoth  Vein  Coal  Company's 

Appeal  633 

Manatt  v.  Starr  673 

Manbeck  v.  Jones  635 

Manchester  v.  McKee  731 

Manchester  Cotton  Mills  v.  Man- 
chester 624 
Manchester    Railway    Co.    v. 

Worksop  Board  of  Health  576 

Manchester    Ship   Canal    Co.    v. 

Manchester  Racecourse  Co.  662, 664 
Mander  v.  Falcke  664 

Manderson  v.  Commercial  Bank    668 
Mandeville  v.  Solomon  136 

V.  Welch  265 

Manes  r.  Durant  394,  396 

Manhattan,  etc.,  Co.  v.  Thomp- 
son 1 75 
Manhattan    Mfg.     Co.    v.    New- 
Jersey  Stock  Yard  Co.                  575 
Manion  v.  Manlon                            689 


II 


TABLE    OF   CASES. 


CI 


[The  references  are  to  the  pages.] 


Manitowoc  Malting  Co.   v. 

The 

Marlborough  (Duke  of) 

V.  Godol- 

Milwaukee  Malting  Co. 

651 

phin 

133 

Manly  v.  Slason 

521 

Marlin 

Fire  Arms  Co.  i 

K  Shields 

Mann  v.  Betterly 

359 

646,  670 

V.  Darlington 

392 

Marlow  v.  Pitfield 

187 

V.  Falcon 

234,  238 

Maroney  v.  Boyle 

522 

Manners  (Lord)  i;.  Johnson 

661,663 

Marquam  i.  Ross 

159 

Manners  v.  Manners 

695 

Marquess  of  Xorthampt 

on  V 

Pol- 

Manning  v.  Albee 

321 

lock 

239,  241 

V.  Lechmere 

401 

Marqu 

is  of  Bute  V.  Glamorgan- 

V.  Manning 

222, 224 

shire  Canal  Co. 

708 

V.  Markel 

236 

Marr's 

Appeal 

335 

V.  Pippen 

338 

Marriott  v.  Badger 

452 

V.  Riley 

385 

Marsd( 

3n's  Trust 

398,  399 

Manser's  Case 

291 

Marsh 

V.  Fairbury  &  N 

R. 

Co.     549 

Mansfield  v.  Sherman 

550 

V.  Falker 

330 

V.  Wallace 

326,  371 

V.  Gamey 

270 

Mansur-Tebbetts    Imp.    Co 

.       V. 

V.  Kaye 

734 

Bruton 

720 

V.  Lee    237,  248, 

249 

250,  251 

Mantz  V.  Buchanan 

703 

V.  Marsh 

147,511 

Manufacturers'  Bank  v.  Hazard    447 

V.  McNair 

296 

Gas   Co.   V. 

In- 

r.  Pike 

493 

diana 

Nat. 

V.  Reed 

597 

Gas  Co. 

615,641 

V.  Scott 

322 

Nat.    Bank    v. 

Marshall  v.  Bilhngsly 

360 

Swift 

297, 445 

V.  Carson 

161,  378 

Manzy  v.  Manzy 

175 

V.  Coleman 

365 

Maple  V.  Kussart 

439 

V.  Homier 

300 

Maps  V.  Cooper 

589 

V.  Keach 

545 

Marberger  v.  Pott 

500 

V.  Marshall 

369 

Marble  Co.  v.  Ripley  533, 551 

,553,713 

V.  Means 

263 

Marbury  v.  Madison 

767 

V.  Roll 

387 

March  v.  McNair 

676 

V.  Ross 

650 

V.  Eastern  R.  Co. 

668 

V.  Rutton 

171 

Marcum  v.  Marcum 

622 

V.  State  Reformatory 

Marcy  v.  Dunlap 

65 

55,  56,  613 

Margetts  v.  Barringer 

167 

V.  Stevens 

174 

Marie  M.  E.   Church   v.  Trinity 

Marti, 

Estate  of 

125 

M.  E.  Church 

137, 139 

Martin 

's  Appeal 

467,  471 

Marine  Bank  v.  Fulton  Bank 

219 

Martin 

,  In  re 

368 

Marine  Ins.  Co.  v.  Hodgson 

271,586 

Martin 

V.  Baird 

109 

Marine  Iron  Works  v.  Wiess 

447 

V.  Bell 

168 

Markell  v.  Ray 

481 

V.  Berens 

401 

Markham  v.  Guerrant 

102 

V.  Graves 

681 

V.  Katzenstein 

137 

V.  Greer 

146 

Markillie  v.  Allen 

495 

V.  Harwell 

334 

Marks  r.  Baker 

519 

V.  Jordan 

323 

V.  Gates 

547,  552 

360, 

369,  563 

V.  Pell 

677 

V.  Martin 

52, 

135,  13G 

Cll 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Martin  v.  Morris 

326 

Mathewson  v.  Davis 

222 

V.  N.Y.,S.  &C.R.CO. 

296 

Matlock  V.  Glover 

295 

V.  Nutkin 

662 

Matson  v.  Oberne 

480 

V.  Sale 

426 

Matteson  v.  Dent 

494 

V.  Sedgwick 

271 

V.  Whaley 

620 

V.  WjTikoop 

223 

Matthewman's  Case 

171 

1'.  Zellerbach 

437 

Matthew's  Appeal 

157 

Martyr  r.  Lawrence 

576 

Matthews  v.  Aiken 

494 

Marvel  v.  Marvel 

106 

V.  Assoc.  Press 

352 

Marvin  v.  Bennett 

566 

V.  Baxter 

360 

V.  Brooks 

690 

V.  Hoagland 

113 

Marvine  i'.  Drexel 

664 

V.  Jarrett 

552 

Marx  V.  Clisby 

460 

V.  Skinker 

668 

V.  ha,  Roc  que 

238 

V.  Ward               87,  8S 

,  100 

Mary  Evans's  Estate 

227 

V.  Weiler 

64 

Maryland  v.  Northern  R.  Co. 

617 

V.  Whitehorn 

301 

Maryland  Clay  Co.  i'. 

Simpers 

535 

Mattingly  v.  Nye 

386 

Constr.  Co. 

V.  Kuper 

Mattingly  Co.  v.  Mattingly,  etc. 

653 

553 

,  556 

Mattix  r.  Weand 

520 

Home  Ins. 

Co.  v.  Kim- 

Mattocks  V.  Moulton 

220 

mell 

52 

V.  Tremain 

785 

Steel  Co.  V. 

Marney 

586 

Maundy  v.  Maundy 

312 

Mason  v.  Bogg 

502 

,506 

Maunsell  v.  White 

327 

V.  City  of  Chicago 

448 

Maupin  r.  McCormick 

519 

V.  Connell 

714 

Maure  v.  Harrison 

497 

V.  Hull 

504 

Maurer's  Appeal 

173 

V.  Limbury 

125 

128 

Max  Meadows  Land  Co.  v.  Brady 

321 

V.  Lord 

482 

Maxon  v.  Gray 

327 

V.  Perry 

195 

V.  Scott 

175 

V.  Pierron 

390 

Maxton  r.  Gheen 

346 

V.  Rhode  Island  Trust  Co. 

102 

Maxwell  v.  Barringer 

111 

V.  Wait 

225 

V.  Hogg 

657 

Massee  v.  Snead 

748 

V.  Kennedy 

316 

Massey  v.  Allen 

382 

V.  Maxwell 

456 

V.  Parker 

178 

179 

V.  Pittenger 

361 

V.  Sherman 

128 

May  V.  Frazee 

225 

Massi  ('.  Lavine 

G5, 

390 

V.  Le  Claire 

571 

Massie  i\  Watts 

71, 

538 

V.  May 

228 

Masson's  Appeal 

571,  683, 

684 

May  bin  v.  Kirby 

275 

Massy  v.  Bowen 

167 

Mayburry  v.  Brien 

99 

Master  v.  Hansard 

664 

Mayenborg  v.  Haynes 

446 

'              I'.  Kirton 

714 

Mayer's  Appeal 

577 

Masterton  v.  Beers 

321, 

335 

Mayer   v.    Journeymen       Stone- 

Mastin v.  Halley 

553 

cutters'  Ass'n 

670 

t'.  Marlow 

341 

V.    Mayor  of  New  York 

302 

Matarese  v.  Caldarone 

731 

Maynard  v.  Railey            715,  716 

780 

Mather  v.  Scoles 

563 

Mayor  v.  Williams                    393 

416 

Mathews  v.  Dragaud 

156 

Mayor  of  Americus  v.  Perry 

668 

V.  Jones 

252 

Mayor  of  Baltimore  v.  Appold 

620 

TABLE   OF  CASES. 


cm 


[The  references  are  to  the  pages.] 


Mayor  of  Baltimore  v.  Williams 

117 

McCartney  v.  Ridgway 

116 

Mayor  of   Basingstoke   v.   Lore 

I 

McCarty  v.  Gas  Co. 

637 

Bolton 

708 

McCaskill  v.  Sav.  Bank 

273 

,451 

Mayor  of  Berwick  v.  Murray 

483 

McClain  v.  Batton 

68 

Mayor  of  Beverly  v.  Att.-Gen. 

211 

McClane  v.  McClane 

776 

Mayor  of  Frederick  v.  Groshon 

622 

McClellan  v.  Scott 

324 

Mayor  of  Gainesville  v.  Dean 

596 

V.  Taylor 

620 

Mayor  of  London  v.  Hedger 

617 

McClintock  v.  Loisseau 

65 

,145 

Mayor  of  Lyons  v.  Advocate  Gen- 

McClory v.  Ricks 

238 

eral  of  Bengal 

205 

McCloskey  v.  McCloskey 

137 

Mayor  of  Macon  v.  Hughes 

668 

McClure's  Appeal 

463 

Mayor  of  Philadelphia  v.  Elliott 

215 

McClure  v.  Johnson 

493 

Mayor  of  York  v.  Pilkington  591 , 

603, 

V.  Law 

376 

708 

V.  Raben 

341 

,342 

Mayou,  Ex  parte 

722 

McClurg's  Appeal 

353 

,663 

Mays  V.  Dwight 

301 

McClurkan  v.  Thompson 

243 

V.  Rose 

780 

McCollom  V.  Morrison 

575 

McAdams  v.  Bailey 

342 

McComas  i'.  Easley 

544 

V.  Gates 

328 

McConaughey  i'.  Bennett's 

Ex'rs 

265 

McAfee  v.  Ferguson 

394 

McConkey  v.  Cockey 

367 

McAleer  v.  Horsey 

323 

McConnell  v.  Hampton 

605 

V.  McMurray 

377 

V.  Smith 

605 

McAlister  v.  Burgess 

199 

McCord  V.  Iker 

633 

McAllister  v.  Commonwealth 

148 

V.  Ochiltree 

208 

,749 

V.  Henderson 

64 

V.  Pike 

606 

V.  Irwin 

483 

McCormick's  Appeal 

720 

McAlpine  v.  Burnett 

519 

McCormick  v.  Grogan 

125 

,313 

McAndrew  v.  Bassett 

654 

V.  Ins.  Co. 

442 

McAninch  v.  Laughlin 

292 

V.  Malin 

366 

McArthur  v.  Franklin 

236 

V.  Stephany 

551 

McAuley's  Estate 

111 

McCorquodale  v.  Bell 

766 

McAuley  v.  Wilson 

206 

McCourtney  v.  Sloan 

59 

McBee,  Ex  parte 

463 

McCowan  v.  Brooks 

492 

V.  Loftis 

416 

McCowen  v.  Pew 

566 

McBlair  v.  Gibbs                        66 

391 

McCracken  v.  Robison 

375 

McBride  v.  Smyth 

179 

McCrae  v.  Hollis 

300 

McCabe  v.  Crosier 

548 

McCray  v.  Clark 

417 

V.  Matthews 

549 

McCready  i'.  Phillips 

327 

McCaffrey's  Appeal 

632 

McCreary  v.  McCreary 

146 

McCaffrey  v.  Woodin               257 

261 

McCreight  v.  Foster 

535, 

537 

McCalU.  Davis                        311 

336 

McCrocklin  v.  McCrocklin 

190 

McCallum  v.  Germantown  Water 

McCrory  v.  Foster 

147 

Co.                                         634 

636 

McCue  I'.  Johnston 

561 

McCammon  v.  Pettitt 

142 

McCulloh  V.  Dashiell 

723 

McCandless  v.  Engle                309 

362 

McCulloin  V.  Mackrell 

563 

McCarthy  v.  McCarthy 

373 

McCuUough's  Appeal 

350 

McCartin  v.  Traphagen 

228 

McCullough  V.  Irvine 

616 

McCartney  v.  Bostwick 

82 

V.  Walker 

54 

V.  McCartney 

359 

V.  Willey 

387 

CIV 


TABLE    OF    CASES. 


[The  references  are  to  the  pag^es.] 


McCullough  V.  Wilson 

449 

McCune  v.  Baker 

88 

V.  Belt 

491,497 

McCurdy  v.  Otto 

93 

McCusker  v.  Spier 

64,  301 

McDaniel  v.  Maxwell 

265 

V.  McCoy 

360 

V.  Pattison 

313 

McDavid  v.  McLean 

483 

McDavit  V.  Pierrepoint 

548 

McDermot  v.  Laurence 

718 

McDermott  v.  Boyd 

392 

McDermutt  v.  Strong 

731 

McDole  V.  Purdy 

519 

McDonald  v.  Beatty 

439 

V.  Buckstaff 

64 

V.  Mass.  Hospital 

196 

V.  Shaw 

201 

V.  Tyner 

338 

V.  White 

777 

McDonogh's  Ex'rs  v.  Murdoch  76,  77, 
78,80,213,215,216 
McDougal  V.  Armstrong  773 

V.  Dougherty  493 

McDowall  V.  Peyton  312 

McDowell  V.  Goldsmith  316 

McEacharn  v.  Colton  663 

McEachern  v.  Stewart  223 

McElfresh  v.  Schley         454,  456,  459 
McElhenny  's  Appeal  224 ,  377 

McElhenny  v.  Hubert  Oil  Co.         377 
McElrath  v.  Pittsburg  and  Steu- 
ben ville  Railroad  Co.  73 
McElya  v.  Hill                                  322 
McEnroe  v.  McEnroe                       371 
McFadden  v.  Hefley                        465 
V.  Jenkyns                     108 
V.  Robinson                   323 
V.  Swinerton          598,  599 
McFaddin  v.  McFaddin           387,  390 
McFadyen  v.  Masters                        416 
McFerran  v.  Taylor                 301 ,  31 1 
McGarvey  v.  Hall                            539 
McGee  v.  McGee                               186 
McGhee  v.  Bell                *                 334 
McGibbeny  v.  Burmaster                561 
McGini'ty  v.  McGinity                       245 
McGinnfs  v.  McGinnis                      458 
McGirr  v.  Aaron                               205 


McGoon  V.  Shirk  68 

McGough  V.  Ins.  Bank  56 
McGourkey   v.    Toledo    &   Ohio 

Central  Railway  Co.  376 

McGowan  v.  City  264 

V.  McGowan  139 

McGowen  v.  West  565 

McGowin  v.  Remington  52,  540 

McGrath, /nre  751,754 

McGregor  v.  Case  582 

V.  Camden  637 

McGuire  v.  Delvin  156 

V.  McGowen  141 

V.  Ramsey  136 

McHan  v.  Ordway  157 

McHarry  v.  Irwin  297 

McHenry,  In  re  392 

McHenry  v.  Hazard  594 

McHugh  V.  County  of  Schuylkill  316 

V.  O'Connor  121 

Mcllvain  v.  Assurance  Co.  502 

Mcllvaine  v.  Gethen  349 

V.  Smith  102 

Mclntier  v.  Shaw  242 

Mclntire  v.  Hughes  121,  546 

V.  Pryor  317 

V.  Zanesville  222 

Mcintosh  V.  Ogilvie  73 

V.  Ropp  439 

Mclntyre  v.  Hauser  266 

V.  Miller  482 

V.  Storey  606,  624,  G67 

McKane  v.  Adams  582 

McKay  v.  Carrington  570 

V.  Green  736 

McKechnie  i'.  Sterling  535 

McKecknie  v.  Hoskins  421 

McKee  v.  Griggs  374 

V.  Higbee  542 

V.  Judd  263 

V.  Lamon  76,  79 

V.  McKinley  90,94,  179 

V.  Phillips  563 

McKenna  v.  George  481,  483 

McKennan  v.  Phillips  166,  187 

McKenzie  v.  Donnell  359 

V.  Perrill  421 

V.  Sumner  88 

McKeown  v.  Allen  383 


TABLE    OF    CASES. 


CV 


[The  references  are  to  the  pages.] 


McKeown  v.  Collins  521 
McKibben  v.  Doyle  302 
McKim  V.  White  Hall  Co.  288 
McKinley  v.  Williams  375 
McKinney  v.  Hensley  363 
V.  Rhoads  120 
McKnight's  Ex'rs  v.  Walsh  223 
McKnight  v.  Brady  519 
V.  Robbins  542 
V.  Thompson  323 
McLain  v.  School  Directors  209 
McLarren  v.  Brewer                 147,  148 
McLaughlin  v.  Att.-Gen.  209 
V.  Equitable  Assur- 
ance Society  569 
McLauren  v.  Wilson  449 
McLaurie  v.  Barnes  548 
V.  Thomas  519 
McLean  V.  Fleming  317 
Mc Learn  v.  McLellan  519 
McLellan  v.  Walker  266 
McLeod  V.  Evans  150 
McLoud  V.  Roberts  511 
McMahan  v.  Kimball  704 
McMahon  v.  Fawcett              481,  497 
V.  Gray  257 
V.   North  Kent  Iron- 
works Co.        779,  783 
McMichael  v.  Webster  322 
McMillan  v.  Arthur  375 
V.  Bissell  244 
V.  McMillan  61 
V.  Richards  234 
McMoran  v.  Fitzgerald  632 
McMorris  v.  Crawford  536 
McMuUen  v.  Beatty  173 
V.  Cooper  777 
V.  Hoffman         65,  66,  326 
V.  Vanzant  542 
McMurray  v.  McMurray  142 
V.  St.  Louis  Co.  292 
McMurtrie  v.  Bennett  551 
McNair  v.  Lot  235 
McNairy  v.  Eastland  731 
McNees  ik  Swaney  240 
McNeil  V.  Magee  544 
t).  Tenth  Nat.  Bank  270 
McNeill  1'.  Bradley  773 
V.  Reid  711 


McNeills  V.  McNeills 

491 

McNew  V.  Toby 

59 

McNutt  V.  Strayhom 

725 

McPherson  v.  Berry 

4.38 

V.  Hayward 

245 

V.  Shade 

555 

V.  Watt 

371 

McQueen  v.  Burhans 

404 

V.  McQueen 

454 

McRea  v.  McRea 

69 

McRee's  Admrs.  v.  Means 

126, 128 

McReynolds  v.  McReynolds  712 

McVay  v.  McVay  109 

McVey  v.  Brendel  652 

McWilliams  v.  Doran  359 

V.  Gough  476 

V.  Webb  272 

Mead,  In  re  122 

Mead  v.  Bunn  322,  334 

V.  Burk  782 

V.  West  Chester  Fire  Ins. 

Co.  300 

Meader  v.  Norton  317 

Meadow  Valley  v.  Dodds  660 

Meason  c.  Kaine  551 

Mechanics'  Bank  v.  Seton  539 

V.  Stone  481 

Meckley's  Estate  292 

Medill  V.  Snyder  459 

Medlin  v.  Buford  316 

Meech  v.  Allen  723 
Meeder  v.  Provident  S.  L.  Assur. 

Soc.  451 

Meehan  v.  Forrester  236 

V.  Owens  553 

V.  Valentine  711 

V.  Williams  421 

Meek  v.  Kettlewell  118 

V.  Perry  368 

Meeker  v.  Larsen  495 

Meeting  St.  Baptist  Soc.  v.  Hail     208 

Meetz  r.  Mohr  07 

Megargee  v.  Naglee  92,  94 

Megibben  v.  Perin  556 

Mehaffey's  Estate  101 

Meidling  v.  Trefz  548 

Meier  r.  Hess  272 

Meigs  V.  Dimock  522 

Meilv  V.  Wood  716 


CVl 


TABLE    OF   CASii:S. 


[The  references  are  to  the  pages.] 


Melcher  v.  Burger 

454 

Melick  V.  Cross 

566 

V.  Pidcock 

93 

Melin  v.  WooUey 

566 

Mellen  v.  Moline  Iron  Works 

776 

Mellish  V.  Mellish 

306 

V.  Robertson 

292 

Mellon  V.  Mulvey 

389 

V.  Reed 

467 

Melvin  v.  Lisealy 

605 

Memphis  Institute  v.  Keeley  652 

Memphis  Sav.  Bk.  v.  Houchens       73 
Menagh  v.  Whitwell  726 

Mendelson  r.  Oxborough  620 

Mendenhall  v.  School  District         620 
Mendes  v.  Guedalla  227 

V.  Mendes  756 

Mendocino  (Bank  of)  422 

Menendez  v.  Holt  317 

Menges  v.  Oyster  292 

Menken  v.  Brinkley  101 

Mercantile  Co-op.  Bank  v.  Brown  447 
Mercantile  Nat.  Bank  v.  Mayor 

of  New  York  605 

Mercantile  Trust  Co.  v.  Southern 

States  L.  &  T.  Co.  732 

Merced  Bank  v.  Crocker  Water 

Co.  489 

Merced  v.  Fremont  619,  622 

Mercer  v.  Newson  223 

V.  Stark  111 

Merchants'  Bank  v.  Weill  273 

Merchants'  Nat.  Bank  v.  Green- 
hood    732 
V.  Paine     732 
Meredith  c.  Heneage  130 

Meriweather's  Adm'r  v.  Herran     264 
Merriam  v.  Boston  R.  Co.  449 

V.  Hassam  104 

V.  Victory  Mining  Co.       507 
Merrill  v.  Houghton  529 

r.  Humphrey  67 

V.  Wilson  318 

Merrillat  r.  Plummer  321 

Merriman  v.  Cover  352 

V.  Munson  102,  119 

V.  Russell  707 

Merritt  v.  Brown  568 

V.  Ehrman  680 


Merritt  v.  Lambert  371 

V.  Wassenich  550 

Merryweather  v.  Moore  611 

Mersick  v.  Hartford  R.  R.  Co.         509 
Mertens  v.  Schlemme  449 

Messeck  i'.  Supervisors  605 

Messer  v.  The  Fadettes  264,  652 

Messersmith  v.  Sharon  Sav.  Bank  73.> 
Metcalf  r.  Cook  174,  17(') 

Metcalfe's  Trusts,  In  re  '.M'-'> 

Metcalfe   v.  The  Archbishop  of 

York  202 

Methfessel's    Extr.    v.    Atlantic 

Trust  Co.  270 

Methodist  Church  v.  Remington 

192, 199 
V.  Wood  147 

Methodist  Episcopal  Church  r. 

Jaques  147,  733,  763 

Metier  v.  Metier  583,  659,  680 

Metropolitan  Bank  v.  Godfrey        296 
V.Taylor  168,  170 
Metrop.  Exhib.  Co.  v.  Ward  662,  665 
Metrop.  Ins.  Co.  v.  Fuller  265 

Metzgar  v.  Metzgar  274 

Meurer's  Appeals  757 

Mevey's  Appeal  489 

Mexborough  (Earl)  v.  Bower         577 
Meyer  Land  Co.  v.  Pecor  552 

Meyer  v.  Garth waite  736 

V.  Johnston  784 

V.  Town  of  Boonville  607 

V.  Yesser  66 

Meyerhoff  v.  Daniels  336 

Michener  v.  Ca vender  362 

Michigan  State  Bank  v.  Ham- 
mond 287 
Michigan  Trust  Co.  v.  Comstock  383 
Michoud  V.  Girod  159,  223,  316,  404 
Micklethwait  v.  Micklethwait  61S 
Middleton  v.  Greenwood  682 
Middletown  v.  Newport  Hosp.  286 
Middletown  Bank  v.  Jerome  273 
Midland  Great  Western  R.  Co.  v. 

Johnson  292 

Midland  Ry.  Co.  v.  Taylor  541 

Mildred  r.  Austin  236 

Miles  V.  Dover  F.  Iron  Co.     545,  684 

V.  Ervin  371 


TABLE    OF   CASES. 


evil 


[The  references  are  to  the  pages.] 


Miles  V.  Lefi  438 

V.  Lingerman  449 

V.  Stevens  297,  550 

V.  Wheeler  159 

Milhau  V.  Sharp  667 

Milholland  v.  Whalen  114 

Milhous  V.  Sally  64 

Milkman  v.  Ordway  684 

Mill  V.  Hill              "  155 

Mill  and  Lumber  Co.  v.  Hayes         355 

Millar  v.  Taylor  643,  647 

Millard's  Case  82 

Millboume  v.  Phillips  495 

Miller's  Appeal  445,  497 

Miller's  Ex'rs  v.  Commonwealth    198 

Miller  and  Bowman's  Appeal         465 

Miller  v.  Ahrens  778 

V.  Albright  520,  523 

V.  Atkinson  197 

V.  Ball  561 

V.  Brown  175 

V.  Chetwood  559 

V.  Chittenden  208 

V.  Commonwealth  465 

V.  Cook  343,  501 

V.  Davidson  731 

V.  Drane  58 

V.  Edwards  147 

V.  Enterprise  Co.  66 

V.  Freeman  713 

V.  Gillispie  384 

V.  Gorman  604 

V.  Grandy  594 

V.  Green  240 

V.  Harwell  511 

V.  Henderson  401 

V.  Henlan  549 

V.  Hoeschler  620 

V.  Jones  715,  716 

V.  Kent  690 

V.  Lincoln  247 

V.  Lorentz  561 

V.  McCan  586 

V.  Meetch  132 

V.  Miller  68, 138 

V.  Miller's  Admr.  166 

V.  Morris  674 

V.  Newton  175 

V.  Porter  197,  199 


Miller  v.  Powers 
V.  Russell 
V.  Sharp 
V.  Sherry 
V.  Simonds 
V.  Slupsky 
V.  Springer 
V.  Stark 
V.  Stokely 
V.  Stout 
V.  Stuart 
V.  Thatcher 
V.  Tjexhus 


302 
690 

560 
72, 428, 732 
369 
147 
458 
496 
142 
449 
301 
106 
550 


V.  U.  S.  Casualty  Co.  56 

V.  Voorheis  321 

V.  Wheelan  253 

V.  Williamson  174 

Millett  V.  Davey  617 

Millhiser  v.  McKinley  720 

Millican  v.  Millican  368 

Milligan  's  Appeal  1 4  7,  489 

Milliken  v.  Bailey  248 

V.  Dravo  561 

V.  Ham  138 

Mills  V.  Davison  212 

V.  Farmer  196,  205 

V.  Fox  446 

V.  Harris  467 

V.  Haywood  562 

V.  Hoffman  451 

V.  Hyde  481 

V.  Johnston  88 

V.  Lockwood  299 

V.  Miller  292 

V.  Newberry  129 

Millsapps  I'.  Pfeiffer  56 

Millsaps  V.  Shotwell  550 

Milroy  r.  Lord  114,116,117,271 

Miltenberger   v.    Logansport   R. 

Co.  508 

Milton  V.  Hogue  54 

Milwaukee  v.  Koeffler  605 
Milwaukee  Electric  Ry.  &  L.  Co. 

V.  Bradley                             595,  603 
Milwaukee  &  M.  R.  Co.  v.  M.  & 

\N.  R.  Co.  263 

Milwaukee  R.  R.  Co.  v.  Soutter  780 

Mims  V.  Macon,  etc.,  R.  R.  Co.  518, 

520,  521 


CVlll 


TABLE   OF   CASES. 


[The  references  are  to  the  pages.] 


Minah  Consol.  Min.  Co.  v.  Briscoe 

518, 
Mincey  v.  Foster 
Miner  v.  Miner 

Mineral  Water  Society  v.  Booth 
Minet  v.  Morgan 
Minini  v.  Cox 
Minnig's  Appeal 

Minns  v.  Billings  192,  196, 

Minor  v.  Ferris 
Minors  v.  Batteson 
Minot  V.  Baker 

V.  Mitchell 
Minshaw  v.  Jordan 
Minter  v.  Carr 
Minturn  v.  Baylis 

V.  Farmers'    Loan    and 
Trust  Co. 

V.  Seymour 
Minzesheimer  v.  Doolittle 
Miskey's  Appeal  ■  119, 

Missionary  Soc.  v.  Eells 

V.  Humphreys 
Miss.  &  Mo.  Co.  V.  Ward 
Mississippi  (State  of)  v.  Johnson 

58, 
Missouri  Hist.   Soc.   v.  Acad,   of 
Science 

Pac.  Ry.  Co.  v.  Cullers 
Mitchel  V.  Reynolds 
Mitchell's  Case 
Mitchell  V.  Aten  414, 

V.  Bunch  71, 

V.  Hayne 

V.  Homfray  364, 

V.  Jones 

V.  Manufacturing  Co. 

V.  McDougall 

V.  Mitchell 

V.  N.  W.  Mfg.  &  Car.  Co. 

V.  Shaneberg 

V.  Winslow  259, 

Mitford  V.  Reynolds  200, 

Mizner  v.  Kussell 
M.,  K.  &  T.  Trust  Co.  v.  Krumseig 
Moale  V.  Buchanan  559, 

Moberly  v.  Trenton 
Mobile  V.  Louisville  &  Nashville 
Railroad  Co. 


519 
553 
752 
352 
765 
222 
621 
197 
746 
132 
202 
137 
680 
249 
552 

586 
113 
346 
369 
312 
212 
640 

607 

201 
265 
351 
443 
426 
538 
599 
374 
340 
689 
328 
126 
599 
521 
261 
216 
320 
345 
562 
288 

626 


Mobile  &  Mont.  Ry.  Co.  v,  Ala. 

Mid.  Ry.  Co.  624 

Mockridge  v.  Mockridge  190 

Moeller  v.  Moore  240 

Moeser,  Admr.,  v  Schneider  267 

Moffet,    etc.,    Co.     v.    City    of 

Rochester 
Moffet  V.  Farwell 
Moffitt  V.  Adams 

V.  McDonald 
Mogg  V.  Hodges 


Moggridge  v.  Thackwell 


300 
253 
440 
146 
514 
202, 203, 
204,  205 
353 


Mogul  S.  S.  Co.  V.  McGregor 
Mohawk  Bridge  Co.  v.  Utica  & 

Schenectady  R.  Co.  635 

Mohler  v.  Carder  321 

Mohr  V.  Byrne  273 

Molton  V.  Martin  174 

Momsen  v.  Noyes  481 

Monahan  v.  Monahan  64 

Monell  V.  Monell  227 

Money  v.  Ricketts  421 

Mong  V.  Roush  207 

Monks  V.  Belden  447 

Monnin  v.  Beroujon  300 

Monongahela  Coal  Co.  v.  Jutte 

353,  357 
Monroe  v.  Smith  387 

Montacute  v.  Maxwell  564 

Montague,  Ex  parte  266 

Montague  v.  Lowry  356 

Montague  (Lord)  v.  Dudman  591,  763 
Montana  Nat.  Bank  v.  Schmidt  673 
Montefiore  v.  Brown  423 

Montgomery  v.  Chadwick       235,  248 
V.  City  Council  493 

V.  Milliken  465 

Montgomery  Traction  Co.  v.  Har- 


mon 

734 

Moody  V.  Keller 

111 

V.  Wright 

261 

Mooers  v.  Smedley 

605 

V.  White 

692 

Moon  V.  Crowder 

547 

Mooney  r.  Byrne 

239 

V.  Miller 

323 

Moore  v.  Allen 

414,  562 

V.  Appleton 

488 

TABLE    OF   CASES. 


CIX 


[The  references  are  to  the  pages.] 


Moore  v.  Atlanta  579 
V.  Beason  236 
V.  Blagge  699 
V.  Brecken  157 
V.  Browne  585 
V.  Burrows  536 
V.  Cleghom  112 
V.  Cord  778 
V.  Crawford  536 
I'.  Crofton  121,546 
V.  Galupo  552 
V.  Halliday  622 
V.  Hamilton  220 
V.  Harrisburg  Bank  252 
V.  Holcombe  274 
V.  Isley  481,  485 
V.  Jaeger  71 
V.  Jennings  622 
V.  Lyttle  59 
V.  Moore               117,  142,  185, 
360,481,491 
V.  Munn  402 
V.  North  West.  Bank  271 
V.  Robbins  470 
V.  Simonson  157 
V.  Small  562 
V.  Stinson  179 
V.  Taylor  604 
V.  Titman  248 
V.  Tuohy  554 
V.  Valda  786 
V.  Wade  242,  244 
V.  Williams  108,  147 
V.  Young  486 
Moorer  v.  Kopmann  544 
More  V.  Bennett  354 
V.  Freeman  188 
Morehead  v.  Eades  323 
Morehouse  v.  Cotheal  616 
Moreland  v.  Atchison  296,  328 
Morenhout  v.  Higuera  695 
Moreton  v.  Harrison  520 
Morey  v.  Grant  782 
V.  Herrick  138 
Morgan  v.  Bank  of  North  Amer- 
ica 256 
V.  Bell                  295,  549,  557 
V.  Boone  157 
V.  DalrjTnple  518 


Morgan  v.  Malleson 

117 

V.  Minott 

370 

V.  Morgan 

99 

V.  Mueller 

695 

V.  Railroad  Co. 

438 

V.  Shinn 

245,  677 

V.  Skidmore 

720 

V.  Smith 

594 

V.  Wordell 

499 

Morgan  (County  of)  v.  Allen  733 

Morgan  Envelope  Co.  v.  Walton    654 
Morgan's  Estate  101 

Morgan's  etc.,  Co.  v.  Tex.  Cen- 
tral Ry.  Co.  246,  494,  508 
Moriarty  v.  Martin  457 
Morice  v.  The  Bishop  of  Durham 

130,  151,  196,  200,  209 
Morison  v.  Moat  610 

Morley  v.  Loughnan  364 

V.  Rennoldson  348,  349 

V.  White  603 

Mormon  Church  Case       204,  206,  216 
Momington     (Countess     of)     v. 

Keane  262 

Moroney's  Appeal  251 

Morrell  v.  Cowan  164 

Morret  v.  Parke  250 

Morrill  v.  Noyes  259,  262,  527 

V.  Skinner  238 

V.  Weeks  283,  284 

Morris  v.  Colman  353 

V.  Gaines  561 

V.  Hemdon  440 

V.  Kearsley  712 

V.  Lewis  546 

V.  McCoy  283 

V.  McCulloch  264 

V.  Morris  217 

V.  Norton  346 

V.  Penrose  300 

V.  Posner  335 

V.  Reigel  137 

V.  Remington  73 

V.  Ziegler  389,  430 

Morris  Canal  Co.  v.  Emmett  335 

Morris  Run  Coal  Co.  v.  Barclay 

Coal  Co.  353,  355 

Morriso  v.  Philliber  340 

Morrison  v.  Fletcher  454 


ex 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Morrison  v.  Herrick  562 

V.  Hershire  67 

V.  Kelly  427 

V.  Lincoln  Savings  Bk.    150 

V.  McLeod  361 

V.  Wilson  449 

Morrow  v.  Brenizer  463,  467,  473 

Morse  v.  Martin.  304 

V.  Morse  353 

V.  Stevens  597 

Morss  V.  Elmendorf  566 

Mortimer  v.  Bell  324,  325 

V.  Capper  302 

V.  Shortall  676 

Mortland  v.  Mortland  314 

Mortlock  V.  Buller  550,  557 

Morton's  Estate  24,  774 

Morton  v.  Barrett  95 

V.  Dillon  499 

V.  Grafflin  503 

V.  Lumber  Co.  497 

V.  Morton          ,  655 

V.  Naylor  266 

V.  Williamson  261 

Mosby  V.  Wall  559 

Moseley  v.  Boush  276 

\K  Gainer  383 

Moser  v.  Libenguth  678 

Moses  V.  Grainger  528 

V.  McClain  551,  557 

V.  Murgatroyd       120,  147,  497 

V.  Ranlet  502 

Mosher  v.  Sinnott  373 

Mosier's  Appeal  492,  497 

Moss  V.  Hanson  557 

V.  Moss  145 

Mott  V.  Clark  273,  274,  415 

V.  Harrington  371 

V.  Mott  369 

V.  Underwood  617 

Motte  V.  Bennett  644 

Moulton  V.  Cornish  246 

V.  Warren  Mfg.  Co.  540 

Mounce  v.  Byars  522,  525 

Mount  V.  Potts  489,  503 

Mountain  Copper  Co.  v.  United 

States  624 
Mountain  Lake  Park  Assoc'n  v. 

Shartzer  586 


Mountfort,  Ex  parte  753 

Mount  Holly  Co.  v.  Ferree    270,  271, 

597 
Mount  Joy  (Bank  of)  i'.  Gish  268 

Mount  Zion  v.  Gillman  597 

Movan  v.  Hays  107 

Mowday  v.  Moore  623,  633,  635 

Mower  v.  Kip  723 

V.  Orr  466 

Mowry's  Appeal  438 

Mowry  v.  City  of  Providence  200 

V.  Todd  269 


Moyer's  Appeal 
Moyle  V.  Moyle 
Moyle  Finch's  Case 
Mucklow  V.  Fuller 


560 
219 

83 
227 


Mudsill  Mining  Co.  v.  Watrous 

322,  682 
Mueller  v.  Eau  Claire  Co.  606 
Muldrick  v.  Brown  620 
Muldrow  V.  Muldrow  537 
Mullen  V.  Doyle  160 
V.  McKim  571 
V.  Walton  404 
V.  Wilson  389 
Muller  V.  Buyck  361 
V.  Dows  72 
Mulligan  v.  Albertz                 545,  550 
Mulliken  ??.  Graham  418 
Mullings  V.  Trinder  556 
MuUis  V.  Nichols  663 
MuUison's  Estate  274 
Mulvany  v.  Kennedy  621 
Mumford  v.  Am.  Life  Ins.  Co.  67 
Muncie  Gas  Co.  v.  Muncie  593 
Muncey  v.  Joest  440 
Mundorff  v.  Wickersham  336 
Mundy  v.  Brooks  55 
V.  Mundy                    702,  705 
Munford  v.  Green's  Adm'r  245 
V.  McVeigh  344 
Munro  r.  Callahan  586 
Munsell  v.  Loree  552 
Munson  v.  Hallowell  317 
V.  Munson  778 
Murdoch  v.  Elliot  228 
V.  Finney  272 
Murdoch  and  Dickson,  In  re  As- 
signment of  222 


TABLE    OF   CASES. 


CXI 


[The  references  are  to  the  pages.*) 


Murdoch's  Case  617 

Murdock  v.  Clarke  248 

Murphy's  Estate  126,  196,  209 

Murphy  r.  Delano  102 

V.  Hubert  106,  143 

V.  Lincoln  620 

V.  Murphy  327 

V.  Nathans  144 

V.  Wilmington  587 

Murray  v.  Ballou  416,  428 

V.  Barlee  171,  172,  173 

V.  Dake  402 

V.  Jones  448 

V.  Lord  Elibank  182,  183,  184 

V.  Lylburn  274,  428 


V.  Murray 

721 

V.  Railroad  Co. 

555 

V.  Rugg 

448 

V.  Superior  Court 

782 

V.  Tolman 

328 

Murrell  v.  Goodyear 

557 

Murrill  v.  Neill 

720 

723 

Murtha  v.  Curley 

571 

Musgrave  r.  Dickson 

490 

Muskingum  (Bank  of)  v.  Carpen- 

ter 

525 

Musselman  ?'.  Kent 

65 

r.  Marquis 

619, 

622 

Musselshell  Cattle  Co.    v.  Wool- 

folk 

620 

Musser  v.  Oliver 

447 

Mussoorie  Bank  v.  Raynor 

125 

Mutlow  V.  Bigg 

476 

Mutual  Life  Ins.  Co.  r.  Griesa 

762 

Myers  v.  Board  of  Education 

148 

V.  Hawkins 

622 

V.  Miller 

490 

V.  Myers 

141, 

148 

V.  Steel  Co 

665 

Mylin  i>.  King 

695 

My  Maryland  Lodge  v.  Adt 

626 

N. 


Nab  V.  Nab 

109 

Nace  V.  Boyer 

359 

Nagengast  i\  Alz 

138 

Nagle's  Appeal 

472 

Nagle  V.  Newton 

571,  683,  684 

Nagle  V.  Robins 

Naglee  's  Appeal 

Naglee's  Estate 

Naglee  v.  IngersoU 

Nairn  v.  Prowse 

Naldred  v.  Gilham 

Nalle  r.  Farish  496, 

Nance  v.  Nance 

Nanney  v.  Morgan 

Nantes  v.  Corrock 

Napier  v.  Darlington 

Nash  V.  Burchard 

V.  Minnesota  Title  Ins.   & 
Trust  Co. 
Nass  V.  Vanswearigen 
Natal  Investment  Co.,  In  re 
Natalie  Anth.  Coal  Co.  v.  Ryon 
Natbrown  v.  Thornton 
National  Bank  v.  Bielharz 

V.  Exchange  Bk. 
V.  Ins.  Co. 
V.  Kimball 
V.  Sprague 
of    Deposit    V. 

Rogers  69, 

of  El  Paso  V.  Fink 
of  West  Grove  v. 
Earle 
Nat.  Granite  Bank  v.  Tyndale 
Park  Bank  v.  Goddard  583, 
Tel.    News    Co.    v.    West. 
Union  Tel.  Co. 
National     Protective     Ass'n     v 

Cummings 
National     Provincial 

En;.;land  ?'.  Marshall 
Nat.  Life  Ins.  Co.  v.  Ayres 
Nat.  Tube  Co.  v.  Ballou 
National   Valley   Bank   v. 

cock 
Nay  lor 's  Appeal 
Nazro  v.  Merchants'  Ins.  Co. 
Neal's  Appeal 
Neal  V.  Black 
V.  Gregory 
V.  Parker 

V.  Reynolds  297, 

Ncase  t'.  Ins.  Co. 
Neblett  v.  MacFarland 


Bank  of 


Han- 
263, 


218 
90 
132 
464 
520 
119 
498 
220 
116 
173 
535 
690 

322 
438 
273 
608 
52 
447 
.504 
149 
605 
723 

.526 
264 

767 
449 
596 

647 

628 

662 
496 
732 

382 
94 
668 
179 
119 
563 
533 
311 
54 
311 


CXll 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Nebraska  L.  &  T.  Co.  i'.  Ignowski 

673,  674 
Nebraska    Molinc,    etc.,    Co.    v. 

Fuehring  269 

Needles  v.  Martin  206 

V.  Needles  255,  341 

Neely's  Appeal  316 

XePf's  Appeal  226,  502 

Neff  V.  Miller  494 

Negaunee  Iron  Co.  v.  Iron  Cliffs 

Co.  289,  620 

Negley  v.  Lindsay  315 

Negroes  Chase  el  al.  i\  Plummer     129 
Neil  V.  Cummings  323 

Neilson  v.  Fry 

V.  McDonald  311 

Neimcevvicz  r.  Gahn 
Nelson  I'.  Allen 


V.  Hagerstown  Bank 


V.  Hamner 

V.  Harwood 

V.  Pinegar 

V.  Stocker 
Nelthorpe  v.  Holgate 
Nesbit  V.  Brown 

V.  Moore 

V.  St.  Patrick's  Church 
Nesbit t  r.  Stevens 
Nesmith  v.  Drum 
Nesne  v.  Sundet 
Ness  V.  Davidson 
Nester  v.  Continental  Br.  Co. 
Nettletoii  V.  Ramsey,  etc.,  Co. 
Neve  V.  Pennell 
Neves  7k  Scott         21 
Nevill  r.  Snelling 
Nevin  (Violet),  In  re 
Neviu.s  V.  Dunlap 
New  ('.  Bonaker 
)'.  H\inting 
Newark  Plank  Road  Co.  v. 

mer 
Newberry,  In  re 
Newberry  v.  French 
V.  James 
Newbold  r.  Newbold 
New  Boston,  etc.,  Co 
ville  Water  Co. 


493 
361 
486 
689 
571 
59 
539 
617 
450 
566 
284 
536 
688 
107 
267 
653 
465 
353 
499 
426 
22,  96,  97,  188 
341 
754 
300 
83, 208. 216 
120 
El- 

668 
754 
555 
610 
234,  235 
Potts- 

(J32 


New  Brunswick  Railway  Co.  v. 

Conybeare  336 
New    Brunswick,   etc.,   Railway 

Co.  V.  Muggoridge  324 
Newburgh  Sav.  Bk.  v.  Town  of 

Woodbury  232 

Newby  v.  Hill  267 

V.  Skinner  471 

New  Castle  (City  of)  v.  Raney  033 

Newcomb  v.  Bonham  23'J 

V.  Boston  Protec.  Dcpt.  201 


23S 
439 
135 


650 
120 


Newcomer  i'.  Kline 
Newell  V.  Nixon 
Newells  v.  Morgan 
New    Eng.    Awl    &    Needle   Co. 
V.    Marlborough   Awl   &   Nee- 
dle Co. 
New  England  Bank  v.  Lewis 
Newham  v.  May  313,  314 

New   Hampshire    Bank   v.    Wil- 

lard  251 

New  Home  Sewing  Machine  Co. 

V.  Fletcher  603 

New  Idea  Pattern  Co.  r.  Whitner  663 
Newis  V.  Topfer  338 

New  Jersey  State  Dental  Society 

V.  The  Dentacura  Co.  610 

Newlin  v.  Freeman  174 

New  Lincoln  Hotel  Co.  ?'.  Shears  261 
New  London  v.  Brainerd 
Newlove  v.  Pennock 
Newman  v.  Alvord 

V.  Chapman 

V.  James 

V.  Newman 

V.  Payne 

V.  Rogers 

V.  Smith 

V.  Willetts 
New  Market  v.  Smart 
New  Memphis  Gas  Co.  Cases 
New  Orleans  v.  Gaines 


606 

53 

654 

428, 429 

167 

62 

371 

569 

327,  373 

729, 731, 732 

228 

373 

491 


New  Britain  v,  N.  B.  Tel.  Co. 


284 


Newport  (City  of)  v.  Masonic  Tem* 

pie  Ass'n  195 

Newport  Water  Works  v.  Sisson     475 
New  Sombrero  Phosphate  Co.  v. 

Erlanger  377 

Newsomt'  i\  Bowyer  186 

New  South  B.  &  L.  Ass'n  r.  Reed  382 


TABLE    OF    CASES. 


cxin 


[The  references  are  to  the  pages.] 


Newstead  v.  Searles  384, 

Newton,  In  re 
Newton  v.  Bronson 
V.  Fay 
V.  Marsden 
V.  Newton 

V.  Swasey  536, 

l\ew  York  City  v.  Pine  62, 

i.'ow  York  Guarantee  Co.  v.  Mem- 
phis Water  Co. 
New  York  &  New  Haven  R.  Co.  r. 
Schuyler  271, 

New  York  &  N.  J.  Tel.  Co.  v. 

East  Orange 
New  York,  Ont.  &  Western  Ry. 

Co.  V.  Davenport 
New  York  Rubber  Co.  r.  Rothery 

446, 
N.   Y.   Steamboat  Co.   ?-.   N.  J. 

Steamboat  Co. 
New  Zealand  Banking  Co.,  In  re 
Neyland  v.  Bendy 
Niagara  Bank  v.  Rosevelt 
Niagara  Fire  Ins.  Co.  v.  Scam- 

mon 
Nibert  v.  Baghurst         549,  562, 
Nice's    Appeal  91, 

NichoUs  V.  Danvers 
Nichols  V.  Cabe 
V.  Crosby 
V.  Eaton 
V.  Levy 

V.  Newark  Hospital 
V.  Otto 
V.  Thornton 
V.  Williams 
Nickell  V.  Handly 
Nickerson  v.  Ma.ss.  Tit 


Ins.  Co. 
414, 


?'.  Van  Horn 
Nickolson  v.  Knowles 
NicoU  (WilUam),  In  re 
Nicoll  V.  Mumford 

V.    Trustees    of 
don 
Niemeyer  v.  L.  R.  June.  Ry 
Nightingale  v.  Goulburn 

V.  Hidden 
Niles  V.  Graham 

H 


Hunting- 


396 
754 
538 
677 
350 
390 
561 
684 

276 

324 

633 

777 

447 

502 
517 
142 
236 

679 
589 
426 
186 
244 
438 
102 
101 
207 
159 
135 
552 
178 

444 
102 
598 
756 
120 

597 
667 
216 
167 
672 


Niles  V.  Mathusa 

Nimmo  v.  Davis 

Nisbet  V.  Smith 

Niven  v.  Belknap 

Nix  V.  Bradley  168, 

Nixon's  Appeal 

Nixon  V.  Rose  167, 

Noakes  &  Co.  Ltd.  v.  Rice      241, 

Noble's  Estate  . 

Noble  V.  Graham 

V.  Grandin 

V.  Jackson 

7\  Moses 

V.  Tipton 
Noel's  Exrs.  v.  Gill 
Noetling  v.  Wright 
Nokes  V.  Gibbon 
Nolan  V.  Nolan 

V.  Snodgrass 
Nolan  Bros.  Shoe  Co.  v.  Nolan 
Nonotuck  Silk  Co.  v.  Flanders 
Noonan  r.  Lee 
Norcross  v.  Widgery 
Norcum  v.  D'ffinch 
Norcutt  ?'.  Dodd 

Nordenfclt   )•.   The   Maxim-Nor- 
dcnfelt    Guns    and    Am.    Co., 
Ltd. 
Norfleet  )•.  Beall 
Norfolk  and  West.  R.  R.  Co.  v. 

Perdue 
Norfolk's  Case  (Duke  of) 
Norfolk,  etc..  Hosiery  Co.  v.  Ar- 
nold 
Norfolk  Trust  Co.  r.  Marye 
Normal  School  r.  Cooper 
Norman  r.  Burnett 
Norris's  Appeal  222, 

Norris  i'.  Clark  455, 

V.  Crowe 

V.  Haggin 

V.  He 

V.  McLam 

V.  Tayloe  365, 

V.  Wilkinson 
North  V.  Earl  of  Strafford 

V.  Peters 

V.  Turner 

V.  Valk 


272 
341 
487 
438 
177 
140 
177 
242 
222 
240 

71 
222 
369 
698 
677 
323. 
287 
101 
549 
655 
150 

21 
427 
303 
388 


353 
373 

438 
211 

316 
577 
581 
111 
708 
547 
292 
404 
428 
245 
379 
524 
708 
57 
264 
470 


CXIV 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


North    American    Coal    Co.    v. 

Dyett  588 

Northampton    (Marquess  of)    v. 

Pollock  239,  241 

Northampton   Co.    v.   Lafayette 

Coll.  198 

North  Baltimore  Build.  Ass'n  v. 

Caldwell  160,  379 

North    British    and     Mercantile 

Ins.  Co.  V.  Lathrop  52,  604 

North    Cheshire    &    Manchester 

Brewing    Co.     r.    Manchester 

Brewing  Co.  653 

North   Chicago  Mill  Co.   v.   St. 

Louis  Co.  586 

Northcutt  r.  Turney  593 

North  Eastern  R.  Co.  v.  Martin  690 
North    Georgia    Mining    Co.    v. 

Latimer  543 

North  Jersey  Street  Ry.  Co.  ?•. 

South  Orange  287 

North  River  Constr.  Co.,  hi  re     494 
North  Shore  R.  R.  Co.  v.  P.  Ft. 

W.  &  C.  Ry.  Co.  54 

Northern  Central  Ry.  Co.'s  Ap- 
peal 668 
Northern  Cent.  Ry.  Co.  v.  Wal- 
worth                                     552,  553 
Northern    Counties   Ins.    Co.    v. 

Whipp  525 

Northern     Pac.    R.     R.    Co.    v. 

Amacker  54 

Northern  Pac.  R.  R.  Co  v.  Clark     605 

V.  Whalen  625 
Northern  Securities  Co.  r.  U.  S. 

356,  357 
Northern  Trust  Co.  v.  Healy  481 
.Northwestern  Iron  Co.  v.  Central 

Trust  Co.  732 

.Northwestern     Land     Ass'n    v. 

Grady  373 

.North  Western  Life  Ins.  Co.  v. 

Montgomery  330 

Norton  v.  Boyd  602 

V.  Brink  137 

V.  Coons  482 

V.  Leonard  93 

V.  Norton  362,  369 

V.  Soule  493 


Norton  v.  Tufts 

440 

V.  Webb 

238 

V.  Woods 

586 

Norwich  v.  Hubbard 

237 

Norwich  Yam  Co.'s  Case 

487 

Norwood  V.  Norwood       251 

,493 

,698 

Nottage,  In  re 

195 

Nottidge  V.  Prince 

359 

Nourse  r.  Prime 

692 

Novello  I'.  Sudlow 

646 

Noyes  v.  Clark 

286 

V.  Crawford 

428 

?;.  Ross 

721 

N.  R.  Constr.  Co.,  In  re 

494 

Nunda  v.  Crystal  Lake 

605 

Nuneaton  Local  Board  v. 

Gen- 

eral  Sewage  Co. 

663 

Nunn  V.  Fabian 

562 

V.  O'Brien 

131 

Nutt  V.  Nutt 

453 

Nyce's  Estate 

220 

Nye  V.  Koehne 

89 

V.  Sochon 

586 

?'.  Storer 

373 

Oak  V.  D\i.stin  361 

Oak  Creek  Valley  Bank  v.  Hel- 

mer  497 

Oakdale  Mfg.  Co.  v.  Garst  351 

Oakes  r.  Turquand  315,  679 

Oakey  v.  Cook  555 

Oakley  r.  Pasheller  497 

Oakman  r.  Walker  67 

Oberlender  r.  Butcher  421 

Obert  V.  Obert  223,  695,  698 

O'Brien  v.  Ash  179 

V.  Boland  340,  547 

r.  Harris  669 

O.  &  C.  R.  R.  Co.  V.  Jackson  Co.  606 
Ocean  City  Ass'n  v.  Schurch  662 
Ocean  City  R.  Co.  v.  Bray  59,  624 

Ochi'.  M.,K.  &T.  Ry.Co.  317 

Ochiltree  v.  Wright  226 

Ochsenbien  i-.  Papelier  583 

O'Connell    v.    Chicago  Terminal 

R.  R.  Co.  624 

O'Connell  v.  O'Conor  68 


TABLE    OF   CASES. 


CXV 


[The  references  are  to  the  pages.] 


O'Connor  v.  Clark 

443 

Oliver  i'.  Piatt 

146 

i;.  Irvine 

136 

V.  Sanborn 

423, 

427 

V.  O'Connor 

428 

Olley  V.  Fisher 

558 

V.  Spaight 

689 

Olmstead's  Appeal 

586 

Oconto  Co.  V.  Lundquist 

590 

Olmsted  v.  Olmsted 

678 

Odd    Fellows'    Savings 

Bank's 

Olney  v.  Conanicut  Co. 

73^ 

Appeal 

52 

Olsen  V.  Youngerman 

89 

Odell  V.  Odell 

213 

Olson  V.  Erickson 

559 

677 

V.  Moss 

370 

V.  Lamb 

157 

Oden  V.  Lockwood 

137, 

337 

V.  Lovell 

550 

Odenbaugh  v.  Bradford 

244, 

677 

Olympia,  Inre 

377 

Odiorne  v.  Moulton 

482 

Omaha  Bridge  Cases 

554 

Odle  V.  Odle 

54 

O'Mulcahy  v.  Holly 

447 

O'Donnell  v.  Chamberlin 

539 

Onasch  v.  Zinkel 

139 

V.  Vandersall 

244 

Onandaga  Nation  v.  Thacher 

540 

V.  White 

139 

O'Neil  V.  McKeesport 

54 

Oehler  v.  Levy 

639 

V.  Behanna 

626 

629 

Oelrichs  v.  Spain 

22,  56, 

314 

Onondaga  County  Savings  Bank 

Ogden's  Appeal 

91,  94, 

179 

V.  United  States 

302 

Ogden  V.  Astor 

691, 

692 

Onslow  V.  Wallis 

99 

V.  Larrabee 

223, 

379 

Ontario  Bank  v.  Mumford 

276 

Ogden  City  v.  Armstrong 

605 

V.  Root 

109 

Ogg  V.  Schultz 

384 

Ont.  &  Western  Ry.  v.  Daven- 

Ogilvie V.  Jeaffreson 

316 

port 

777 

O'Hara  v.  Dil worth 

137 

Ontario  Salt  Co.  v.   Merchants' 

V.  Dudley 

313 

329 

Salt  Co. 

355 

V.  Nelson 

637 

Opdyke  v.  Bartles 

236 

V.  Stack 

666 

Oppenheimer  v.  Levi 

157 

777 

Ohio  Insur.  Co.  ?'.  Ledyard 

426 

Oram  v.  Rothermel 

326 

V.  Ross 

427 

Orbin  v.  Stevens 

540 

Oil  Co.  V.  Oil  Co.               546,  549 

551 

Ordwaj-  r.  Chace 

674 

Oil  Creek  R.  Co.  v.  Atlantic  and 

Oregon  Lumber  Co.  v.  Jones 

142 

Great  Western  R.  Co. 

288 

544 

Oregon  Steam  Nav.  Co.  v. 

Win- 

Old  Colony  R.  Co.  r.  Evans 

535 

sor 

353 

356 

Old    Dominion    Copper 

Co.    r. 

O'Reilly  r.  Nicholson 

452 

Bigelow 

377 

Oriental  Commercial  Bank  (Case 

Old  Dominion  Tel.  Co. 

V.  Pow- 

of) 

487 

ers 

591 

Ormes  r.  Beadel 

403 

Oldham  v.  Hughes 

468 

477 

Ormsby  v.  Graham 

557 

Oldhams  v.  Jones 

692 

Orne  v.  Fridenberg 

661 

Old  South  Society  i'.  Crocker 

192 

O'Rorke  v.  Bolingbroke 

341 

Old  Times  Co.  v.  Casey 

61 

Orphan  Asylum  v.  McCartee 

780 

dinger  v.  Shultz 

142 

Orr  V.  Blackwell 

502 

Olive,  In  re 

221 

V.  Diaper 

762 

Olive  V.  Dougherty 

142 

,563 

V.  Echols 

298 

Oliveira  v.  University 

56 

V.  Peters 

382 

Oliver  r.  Brickland 

743 

('.  Zimmerman 

287 

V.  Croswell 

683 

Orrell  v.  Orrell 

454 

,456 

V.  Oliver 

329 

,374 

Orton  V.  Smith 

778 

CXVl 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Osborn  i;.  Bank  of  United  States 

659,  669 
V.  Ciirr  412 

V.  Charlevoix  58,  591 

V.  Elder  436 

V.  Heyer  782 

V.  Morgan  185 

V.  Noble  497 

V.  Phelps  559,  677 

Osborne  v.  Gordon  133 

V.  Missouri  Pac.  Ry.  635,  641 

Osbume  ?•.  Barter  and  Goddins     630 

Osgood  V.  Franklin         339,  340,  547 


r.  Rogers 
Osmond  v.  Fitzroy 
Osterman  i'.  Baldwin 
Ostrander  v.  Quin 

?'.  Weber 
Oswald  /'.  McGehee 
Otis  V.  Beckwith 
Otley  V.  McAlpine's  Heirs 
Ottenhouse  i\  Burleson 
Oury  V.  Saunders 
Overman's  Appeal 
Overseers  v.  Tajdoe 
Overton  (Bank  of)  v 
V.  Banister 
V.  Lee 
Owen  ?'.  Homan 

1-.  Paul 
Owens  V.  Childs 
V.  Crossett 
V.  Dickinson 
V.  Miller 
V.  Williams 
Owings  V.  Baldwin 

r.  Myers 
Owncs  V.  Ownes 
Oxford  V.  Tyrell 
Oxford  and  Cambridge  (Univer 

si  ties  of)  v.  Richardson 
Oxford's  (Earl  of).  Case    18,  582,  584 
Oyster  !;.  KnuU  128 

Ozley  V.  Ikelheimer  175 


199 
359 
106 
450 
54,  55 
330 

113, 118 
692 
501 
495 
101 
196 
Thompson  419 
450 
.349 
779 
281 
608 
620 

171, 173 
426 
106 
555 
428 
113 
13 

643 


P. 

Pace  (;.  Smith 

Pacific  Live  Stock  Co.  v. 


711 

Gentry      65 


Pacific  R.  R.  Co.  v.  Campbell  551 

Pacific  Vinegar  Works  v.  Smith  373 

Packard  v.  Beaver  Valley  Co.  778 

in  Old  Col.  R.  R.       111,112 

V.  Putnam  108 

V.  Stevens  597 

Packer  r.  Rochester,  etc.,  R.  Co.  234 

Paddock  v.  Fletcher  324 

V.  Strobridge  329 

Page  V.  Allen  606 

V.  Estes                             182,  185 

r.  Greely  555 

V.  Heath  731 

V.  Murray  661 

V.  Page                              142,  144 

V.  Vankirk                        715,  716 

Paine  v.  Bank  439 

V.  Forney  199 

V.  Paine  115 

Painter  r.  Painter  469 

Paisley's  Appeal  126 

Pallen  r.  .\gricultural  Bank  489 

Pallis  V.  Robinson  729 

Palmer  r.  Board  of  Education  58 

V.  De  Witt  648 

V.  Ford  287 

V.  Harris                         64,  652 

?•.  Richardson              562,  564 

r.  Simmonds  131' 

V.  Sinnickson  54 

V.  Snell  503 

V.  Williams  416 

Palmes  r.  Danby  236 

Palmetto  Lumber  Co.  v.  Risley  147 

Panama,  etc.,  Royal  Mail  Co.,  In 

re  527 
Pappenheim  r.  Metropolitan  Ele- 
vated Ry.  Co. 
Paquin  v.  Milliken 
Parbury's  Case 
Parham  r.  Green 
Parish  v.  Camplin 
Paris  Skating  Rink  Co.,  In  re 
Paris  ('.  Greig                   540,  550, 
Park  r.  Blodgett 
r.  Johnson 
V.  Nat.  Druggists'  Ass'n 


Park  Co.  v.  Van  Dusen 
Parke  v.  Boston 


684 
311 
443 
491 
292 
263 
554 
292 
3.39 
354 
663 
297 


TABLE    OF    CASES. 


CXVU 


[The  references  are  to  the  pages.] 


Parke  v.  Leewright 

561 

Parsons  v.  Parsons 

183 

,  186 

Parker's  Appeal 

90 

V.  Tacoma,  etc.,  Co. 

373 

Parker  v.  Bank 

525 

Parson's  Adm'r  v.  Wilson 

281 

V.  Boutwell 

776 

Partridge  v.  Havens 

144 

V.  Brancker 

526 

Paschal  i'.  Acklin 

197 

,208 

V.  Brooke 

166 

,  167 

Paschall  r.  Hinderer 

316 

V.  Catron 

338 

Pasley  v.  Freeman 

310 

V.  Cobum 

744 

Pasquay  v.  Pasquay 

476 

V.  Crittenden 

450 

Passyunk  Building  Ass'n 

Appeal 

688 

V.  Culvertson 

500 

Patch  V.  Ward 

309 

V.  Frith 

569 

Patchin  v.  Lambom 

569 

V.  Furlong 

621 

,622 

Paterson  v.  Paterson 

186 

V.  Garrison 

659 

Paterson,  etc.,  R.  Co.  v. 

Jersey 

V.  Gerard 

692 

,694 

City 

594 

597 

V.  Hayes 

334 

Patrick,  In  re 

118 

V.  Kelly 

523 

Patrick  i'.  Bingaman 

102 

V.  Olliver 

286 

Patten  v  Moore 

416 

421 

V.  Parker 

561 

V.  Wilson 

267 

V.  Sears 

644 

Patten  Paper  Co.  v.  Kaukauna 

V.  Stevens 

776 

Co. 

613 

V.  Wells 

563 

Patterson's  Appeal 

633 

660 

V.  Whyte 

663 

Patterson  v.  Barlow 

607 

V.  Winnipiseogee  Co. 

632 

1'.  Boehm 

392 

Parkes  v.  White 

177 

372 

v.  Fish 

608 

Parkoy  v.  Ransey 

447 

V.  Kirkland 

328 

Parkhurst  v.  Hosford 

360 

V.  Lane 

54 

I'.  Kinsman 

643 

V.  Lennig 

160 

V.  Van  Cortlandt 

561, 

562, 

V.  Lytle 

436 

447 

566 

083 

V.  McCamant 

597 

Parkin,  In  re 

550 

V.  Rabb 

274 

Parkinson's  Appeal 

463 

V.  Smelting  Works 

373 

Parkinson  v.  Hanbury 

248 

V.  Yeaton 

501 

Parkist  v.  Alexander 

156, 

15S, 

Pattison  v.  Skillman 

540 

249 

425 

Patton  V.  Borough 

427 

Parkman  v.  Savings  Bank 

114 

V.  Campbell 

280 

i;.  Welch 

489 

503 

V.  Chamberlain 

109 

Parks  V.  Jackson 

428 

V.  McCIure 

561 

Parmlee  v.  Sloan 

142 

Paul  V.  Chouteau 

135 

Parnall  v.  Parnall 

125 

V.  Draper 

150 

Pa.  R.  R.  Co.  V.  Bogert 

58 

V.  Fulton 

416 

Parret  v.  Shaubhut 

425 

V.  Paul 

115 

Parrish  v.  Koons 

552 

Paulison  v.  Van  Iderstine 

300 

Parrott  i'.  Chestertown  Bank 

490 

Paulk  V.  Mayor,   etc.,   of 

Syca- 

Parshall's  Appeal             160 

,223 

372 

more 

64, 

591 

Parsons  r.  Baker 

128 

Pavesich  v.  New  Eng.  Life  Ins. 

V.  Durand 

613 

Co. 

669 

V.  Hoyt 

428 

Paxton  V.  Cooper 

503 

V.  Hughes 

617 

V.  Harrier 

488, 

489 

V.  Millar 

229 

V.  Rich 

520 

C'XVlll 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Payette  v.  Ferrier 

369 

Peers  v.  Lambert 

566 

Payne  v.  Bullard 

56 

Peery  i\  Hall 

442 

V.  Graves 

683 

Peiffer  v.  Lytle 

145 

V.  Lumber  Co. 

69 

Peirs  V.  Peirs 

619 

V.  Patterson 

243 

Pell  V.  Ball 

695 

V.  Sheldon 

732 

V.  Mercer 

194 

V.  Wayland 

63.5 

Pelletreau  t'.  Jackson 

255 

Peabody  v.  Chicago    Gas    Trust 

Pellman  v.  Hart 

270 

Co. 

355 

Peltier  v.  Peltier 

186 

V.  Damon 

439 

Pelton  V.  Place 

51 

1).  Flint 

668 

Pember  r.  Inhabitants  of  Kings- 

V. Norfolk 

610 

ton 

199 

V.  Tarbell          139,  142 

,571 

Pemberthy  Injct.  Co.  i'.  Lee 

655 

Peachy  r.  Duke  of  Somerset 

283 

Pemberton  v.  Pemberton        452 

455 

Peacock  r.  Peacock 

714 

Pembroke  i".  Logan 

563 

Peak  V.  Dorwin 

494 

Pence  v.  Carney 

638 

V.  Haj'den 

660 

Pendleton  v.  Dalton 

545 

Peake  v.  Highfield 

681 

Penfield  v.  Dunbar 

416 

V.  La  Bavv 

174 

Peninsular,  etc.,  Co.  v.  Pacific  S. 

Pearce  v.  Buell 

299 

W.  Co. 

71 

V.  Creswick 

768 

Penn  r.  Ingles                           586 

689 

V.  Green 

223 

V.  Lord  Baltimore      71,  83 

538 

V.  Morris 

236 

V.  Whitehead 

175 

V.  Pearce 

186 

Penn  Bank  v.  Hopkins 

734 

V.  Roberts 

267 

Pennell  v.  Deffell                      147 

148 

V.  Smith 

420 

Pennington  v.  The  Governor 

281 

V.  Watts 

552 

Pennock's  Appeal 

324 

Pearpoint  i\  Graham 

714 

Estate                     126 

131 

Pearse,  Ex  parte 

524 

Pennock  v.  Coe                 259,  261, 

263 

Pearse  r.  Green 

230 

Pennsylvania  (Bank  of)  v.  Potius 

485 

PearsoU  v.  Chapin 

315 

Pennsylvania  Co.   v.   Delaware, 

Pearson's  Case 

379 

etc.,  Co. 

547 

Pearson  v.  Cardon 

599 

Pennsylvania  Co.,  etc.,  v.  Frank- 

V. Darrington 

52 

lin  Fire  Ins.  Co. 

541 

V.  Jamison 

225 

Pennsylvania  Hospital  i-.  Dela- 

V. Morgan 

311 

ware  Co. 

198 

V.  Seay 

243 

Pennsylvania  Ins.  Co.  v.  Foster 

173 

V.  Williams 

286 

Pennsylvania  Lead  Co.'s  Appeal 

631 

Pease  v.  Kelly 

519 

Pennsylvania  R.  Co.'s  Appeal 

541 

r.  Pilot  Knob  Iron  Co. 

235 

Pennsylvania  R.  Co.  v.  Shay 

302 

Peck  V.  Ayres  &  Lord  Tie  Co. 

777 

Pennsylvania   Salt   Co.   v.    Neel 

V.  Bullard 

317 

166, 

389 

V.  Ellis                             482 

488 

Pennsylvania  (State  of)  v.  Wheel- 

^\ Heurich 

263 

ing  Bridge  Co.                       640, 

641 

V.  Levinger 

551 

Penny  v.  Allen 

85 

V.  Scofield 

114 

V.  Avison 

222 

Peckham  r.  Balch 

563 

V.  Martin                        279, 

302 

I'.  Barker 

562 

V.  Turner 

132 

Peek  V.  Guruey 

324 

V.  Watts 

423 

TABLE    OF    CASES. 


CXIX 


[The  references  are  to  the  pages.] 


Pennybacker  v.  Laidley 

328 

,682 

Perrin  v.  Crescent  City  Co. 

632 

People   ex   rel.    L'Abbe   i 

.   Dist. 

V.  Lepper 

223 

Court 

669 

Perrine  t'.  Newell 

224 

People  V.  Barrett 

613 

Perry  v.  Bank 

268 

V.  Brown 

436 

,437 

I'.  Boileau 

167 

,  168 

V.  City    Bank    of 

Roch- 

V.  Craig 

316 

ester 

148 

i\  Dicken 

371 

V.  Cogswell 

198 

V.  Hall 

4-i_' 

V.  District  Court 

669 

V.  Head 

1 :'..-, 

V.  Elmore 

270 

,271 

V.  Lucas 

7()S 

('.  Houghtaling 

56 

V.  Parker 

5,M 

V.  Howe 

56 

V.  Pratt 

707 

V.  Mercein 

752 

V.  Rogers 

334 

V.  New  York 

668 

V.  Truefitt 

650 

,  654 

V.  North     River 

Sugar 

Perry-Herrick  v.  Atwood 

.392 

Ref.  Co. 

354 

Peru  (Republic  of)  i'.  Weguelin 

776 

V.  Powers 

210 

Peter  r.  Beverly 

226 

,463 

V.  Rose 

653 

658 

I'.  Wright 

328 

V.  Stock  Brokers' 

Build- 

Peters  i-.  Delaplaine 

549 

ing  Co. 

555 

V.  Florence 

292 

V.  Sup.  Ct.  of  New 

York 

286 

V.  Jones 

436 

V.  Tioga 

264 

V.  ^lortimer 

344 

People's  Bank's  Appeal 

320 

V.  Prevost 

59o 

B.  and  L.  Ass'n  ( 

•.  May- 

V  Tunell 

522 

field 

501 

Peterson  v.  Ball 

266 

Nat.  Bank  of  Pittsburgh 

V.  Bos  well 

338 

V.  LoefTert 

382, 

517, 

V.  Chase 

552 

729 

730 

V.  Clark 

243 

Nat.  Bank  v.  Marye 

67 

I".  Ferrell 

618 

Sav.  Bank  c.  Dei 

lig 

179 

i\  Vanderburgh 

51 

r.  Parisette 

551 

Peto  i".  Hammond 

424 

r.  Webb 

117 

Petre  r.  Espinasse 

119 

Pepper's  Will 

305 

Petrie  v.  Badenoch 

156 

Pepper  v.  Lee 

167 

i\  Torrent 

690 

Perceval  (Lord)  i'.  Phipps 

624 

Petroski  i\  Minzgohr 

157 

Percival  v.  Harger 

335 

Pettibone  i\  Hamilton 

577 

V.  Wright 

373 

Petty  V.  Petty 

397 

703 

Percy  v.  Cockrill's  Extr. 

316 

Peugh  V.  Porter 

257 

265 

Perin  v.  Carey           192,  201,  207, 

212 

Peverell  v.  Huse 

12, 

579 

Perkins,  In  re 

399 

Peyton  r.  Hallett 

256 

Perkins  v.  Butler  County 

257 

Phalen  v.  Trust  Co. 

542 

V.  Coughlan 

465 

Pharis  r.  Leachman 

736 

V.  EUiott 

171, 

175 

Pheasant  ?'.  Hanna 

287 

V.  Gay 

301 

Phelps  V.  Benson 

326 

V.  Hays 

177 

r.  Ellsworth 

249 

V.  Lyman 

286 

V.  Green 

698 

Perlberg  v.  Smith 

650 

V.  Harris 

776 

Perls  r.  Saalfeld 

351 

V.  Holderness 

346 

Perot's  Appeal 

465 

V.  Pond 

466 

cxx 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Phelps  V.  Seely 

142 

V.  Wait 

324 

Phenix    Ins.   Co.  v.   First    Nat. 

Bank 

499 

Philadelphia  v.  Davis      454,  456 

458 

V.  Fox                                  192 

215 

V.  Keystone  Battery  A    198, 

200 

V.  Masonic  Home 

198 

V.  Overseers 

198 

V.  Penna.  Hospital 

198 

V.  Women's  Christian  Assoc. 

198 

Philadelphia  (City  of)  Appeals  of 

265 

Philadelphia  (City  of),  v.  Girard's 

Heirs                       192,  205,  206 

213 

Philadelphia  (Mayor  of)  v.  Elliott 

209 

Philadelphia  Ball  Club,  Limited, 

V.  Lajoie                         534,552 

665 

Philadelphia  B.  B.  Club  v.  Hall- 

man 

665 

Philadelphia   &  Erie  R.   Co.   v. 

Catavvissa  R.  Co. 

668 

Philadelphia,  etc.,  R.  Co.  v.  How- 

ard 

438 

Philadelphia,     etc.,    R.    Co.     v. 

Woelpper                              259, 

527 

Philadelphia  Trust  Co.'s  Appeal 

90 

Phila.  Trust  Co.  v.  Coal  &  Iron  Co 

.  66 

Philan  v.  Smith 

57 

Philbrook  v.  Delano                 154, 

519 

Philips  V.  Brydges 

85 

V.  Crammond               143 

147 

V.  Sinclair 

235 

Phillips's  Appeal 

90 

Phillips's  Estate                       270, 

272 

Phillips,  £'x  parte 

755 

Phillips's      Exr.     v.     McConica, 

Guardian 

294 

PhiUips's  Trusts,  In  re 

271 

Phillips  I'.  Atkinson 

719 

V.  Belden                    316, 

692 

V.  Berger 

539 

V.  Bordman 

620 

V.  Hardenberg 

337 

V.  Hassell 

185 

V.  Hogue 

268 

V.  Hudson                   594 

595 

V.  Kesterson 

778 

V.  Medbury 

350 

V.  Meily 

17 

Phillips  V.  Moore 

361 

V.  MuUings 

119 

V.  Overfield 

147 

V.  Phillips    69, 

274, 

411,412, 

413 

,  414,  706 

V.  Saunderson 

520 

V.  Stagg 

266 

V.  Thompson 

497, 

562,  566, 
571,683 

V.  Winslow 

259, 261 

Philpott  V.  Elliott 

559 

Phinizy  v.  Guernsey 

535 

,  565,  .566 

Phipard  v.  Phipard 

115, 117 

Phoenix  v.  Gardner 

242 

Phoenix   Ins.   Co.  v.    First 

Nat. 

Bank 

499 

Phoenix  Iron  Co.  v.  Philadelphia     267 

Phyfe  V.  Warden 

547 

Piatt  V.  Oliver 

147 

Picard  v.  Hine 

171, 172 

V.  McCormick 

322 

Pickard  v.  Sears 

438 

, 439, 442 

Pickens  v.  Wood 

139 

Pickering  v.  Bishop  of  Ely 

665 

V.  Ilfracombe  Ry. 

Co.     270 

V.  Pickering 

544 

V.  Shotwell 

198 

, 199, 208 
216 

V.  Tongue 

12 

V.  Townsend 

509, 733 

Pickersgill  v.  Lahens 

678 

Pickett  V.  Green 

353 

Pidding  v.  How 

652 

Pier  V.  Lee 

569 

Pierce  v.  Emery 

259 

V.  M'Keehan 

111, 147 

V.  Mil.  &  St.  P.  R 

.R  ( 

::o.     259, 
261,523 

V.  Pierce 

138 

V.  Robinson 

240,  244 

t;.  Rollins 

695 

V.  Stewart 

535 

V.  Trigg 

718 

Piersol  v.  Neill 

550 

Pierson  v.  Catlin 

493 

V.  David 

519 

V.  Garnet 

128 

Pigot  V.  Cubley 

528 

Piggt)tt  V.  Stratton 

327 

TABLE    OF    CASES. 


CXXl 


Pike  V.  Armstead 

426 

V.  Dickinson 

690 

V.  Fay 

321 

V.  Fitzgibbon 

171, 172 

V.  Gleason 

252 

V.  Pike 

563,  565 

Pilcher  v.  Rawline 

412 

430,  706 

Pillow  V.  Southwest  Imp.  Co.  157 
Pillsbury-Washbum  Flour  Mills 

Co.  V.  Eagle  654 

Pillsworth  V.  Hopton  659 

Pinchain  v.  CoUard  521 

Pinckney  V.  Pinckney  511 

Pingree  v.  Comstock  120 
Pinkerton  v.  Manch.  &  L.  R.  Co. 

270,  271 

Pinkham  v.  Gear  297 

Pinkum  v.  Eau  Claire  58 

Pinner  v.  Sharp                        548,  551 

Pinney  v.  Fellows             135,  142,  147 
Piper  V.  Hoard                           51,337 

V.  Piper  622 

V.  Smith  717 

Piro  V.  Shipley  434 

Piscataque  Ins.  Co.  v.  Hill  313 

Pit  V.  Cholmondeley  691 

Pitcaim  v.  Pitcaim  24 

Pitcher  v.  Barrows  425 

V.  Henessey  402 

Pittlekow,  In  re  602 
Pitts  V.  American  Freehold  Land 

Mtg.  Co.  503 

V.  Cable  243 

V.  R.  I.  Hospital  Trust  Co.  755 

V.Weakley  110,111 

Pittsburgh's  Appeal  606 

Pittsburgh  Iron  Co.  v.  L.  S.  Iron 

Co.  291,297 

Pittsburgh,  etc.,  Ry.  v.  Board  of 

Pub.  Works  605 
Pittsburgh  Ry.  Co.  v.  Crothers- 

ville  64 

Pitzele  V.  Cohn  65 

Plankington  v.  Hildebrand  516 

Plank  Road  Co.  v.  Murray  286 

Piano  Mfg.  Co.  v.  Auld  148 

Plant  V.  Plant  128 

V.  Woods  628 

Piatt  V.  Square  236 


[The  references  are  to  the  pag^es.] 

Piatt  V.  Waterbury  637 

Pleasants  v.  Smith  591 

Pleasonton  v.  Raughley  561 

Pledge  V.  White  249 

Plucker  v.  Teller  160 

Plumer  v.  Guthrie  245 

V.  Reed  161 

Plummer  v.  Farmers'  Bank  438 

Poague  V.  Boyce  383 


Pocahontas  Coke  Co.  v.  Coal  Co.     353 

PocahontasTanning  V.  BoomCo.  417 

Pohlman  v.  Dawson  663 

Poindexter  v.  Jeffries  182 

Poland  V.  Love  269 

Polhill  V.  Walter  330 

Poling  V.  Williams  390 

Polk  V.  Linthicum  228 

Pollak  V.  Claflin  Co.  688 

V.  Rose  777 

Pollard  V.  McKenney  337 
V.  Photographic  Co.  610,  649 

669 

V.  Pollard  267,  262,  270 

V.  Shaffer  3 

Pollock  V.  Boyd  586 

V.  Farmers'  Loan  &  Trust 

Co.  604 

V.  Maison  234 

V.  Wright  493,  495 

Pomeroy  v.  FuUerton  554 

V.  Wells  186 

Pond  V.  Carpenter  175 

V.  Harwood  604 

Poole's  Case  356 

Poole  V.  Middleton  539 

V.  Munday  220 

Pooley  V.  Budd  540 

V.  Driver  711 

V.  Qui  Iter  223 

Poor  V.  Bradbury  126 

V.  Hazleton  341 

Pope  V.  Ames  597 

V.  Chaffee     -  346 

V.  Curl  648 

V.  Nichols  416 

Pope's  Ex'rs  v.  Elliott  102 

Popham  V.  Exham  378 

Poppers  V.  Meagher  283 

Portarlington  (Lord)  v.  Soulby      590 


CXXll 


TABLE   OF   CASES. 


[The  references  are  to  the  pages.] 


Port  Clinton  R.  Co.  v.  The  Cleve- 

Powell V.  Lautzy 

158 

land  &  Toledo  R.  Co. 

553 

V.  Powell                      135, 

370 

Porter  v.  Bank  of  Rutland 

111 

V.  Murray 

174 

V.  Cole 

426 

V.  Nat.    Bank    of    Com- 

V. Corbin 

157 

merce 

428 

V.  Doby 

96 

V.  Williams 

247 

V.  Fall 

591 

Powell  Duffryn  Steam  Coal  Co. 

V.  Hardy 

446 

('.  Taff  Vale  Railway  Co. 

577 

V.  Jefferies 

293 

Power  V.  Reeder 

687 

V.  Patterson 

691 

Powers'  Appeal                  51,  341 

342 

V.  Reed 

597 

Powers  V.  Hale 

547 

V.  Roseman 

39 

,481 

V.  Mayo 

340 

V.  Spencer 

785 

Powles  V.  Hargreaves 

517 

V.  Turner 

305 

Powys  V.  Blagrave 

616 

V.  Young 

690 

Poyntz  V.  Shackelford 

55 

Portland  (Duke  of)  v.  Toph 

am 

399 

Prairie    State    Bank   v.    United 

Portneuf  Lodge  v.  Western  Sav. 

States 

499 

Co. 

344 

Frame  v.  Ferrell 

352 

Port  Royal  R.  Co.  v.  Hammond 

73, 

Prater  v.  Miller 

553 

538 

Prather  v.  Prather 

186 

Portuondo    Cigar  Co.    v. 

Cigar 

Pratt's  Appeal 

658 

Co. 

317 

Pratt  V.  Ay  re 

109 

Post  V.  Hagan 

363, 

364 

V.  Barker 

361 

V.  Kimberly 

689 

V.  Brett 

664 

V.  Moore 

127 

V.  Carter 

382 

V.  Railroad 

577 

V.  Kendig                         51 

597 

V.  Toledo  R.  R.  Co. 

763 

V.  Law 

683 

Poston  V.  Eubank 

488 

V.  Longworth 

54 

Potter  V.  Edwards 

241 

V.  Northern 

736 

Potts  V.  Dulin 

483 

V.  Philbrook 

334 

V.  Fidelity       Ins.    Trust, 

V.  Sheppard,  etc..  Hospital 

127, 

etc.,  Co. 

119 

129 

,  130 

V.  Fuller 

644 

V.  Taliaferro                  463, 

465 

V.  Gracie 

311 

V.  Taunton  Copper  Co. 

541 

V.  Hicks 

720 

Pratt  Food  Co.  v.  Bird 

591 

V.  HoUister 

538 

552 

Pray's  Appeal 

219 

V.  MuUer 

644 

Preacher's  Aid  Society  v.  Rich 

208 

V.  Thornton 

208, 

213 

Precinct  v.  Hopkinton 

494 

V.  Titcomb 

317 

Preddy  v.  Rose 

264 

V.  Waller 

695 

Predohl  v.  0 'Sullivan 

499 

Poughkeepsie  Gas  Co.  v.  Cit 

izens' 

Prentis  Atlantic  Coast  Line 

607 

Gas  Co. 

620 

Presbyterian  Board  i'.  Culp 

127 

Powell's  Ex'rs  v.  White 

493 

President    of    United    States    v. 

Powell  1'.  Birmingham  Vin 

Brew 

Drummond 

197 

Co. 

650 

651 

Pressed  Steel  Car  Co.  v.  Standard 

V.  Dwyer 

544 

Car  Co. 

611 

V.  Elliot 

566 

Presstman  v.  Mason 

403 

V.  Evans 

219 

Preston  v.  Russell 

259 

V.  Heisler 

296 

V.  Stuart 

552 

TABLE    OF   CASES. 


CXXIU 


[The  references  are  to  the  pag^es.] 


Prettyman  v.  Wilkey 

421 

Prospect  Park  &  Coney  Island 

Prevost  V.  Clarke 

128 

R.  R.  Co.  V.  Coney  Island  & 

V.  Gratz 

223 

Brooklyn  Co.                         551 

554 

Prewett  v.  Trimble 

324 

Prosser  v.  Edmunds 

263 

Price's  Appeal 

60 

Prothero  v.  Phelps 

590 

Price  V.  Lloyd 

562 

Proudfoot  V.  Wightman 

550 

V.  Maxwell 

198, 

201 

Providence  Inst,  for  Savings  v. 

V.  McDonald 

427 

Carpenter 

111 

V.  Middleton 

689 

Provident  Loan  Ass'n  v.  Carter 

503 

V.  Minot 

774 

Provident  Steamboat  Co.  v.  Fall 

V.  Oakfield  Creamery  Co. 

637 

River 

620 

V.  Perrie 

239 

Provident  Trust  Co.  v.  Mcintosh 

V.  Planters'  Nat.  Bank 

171 

335 

568 

V.  Price 

297 

Provost    of   Dumfries   v.    Aber- 

V.  Sisson 

94,  9€ 

.,  99 

crombie 

206 

V.  Taylor 

90,94 

Prudential     Assurance     Co.     v. 

Prickett  v.  Seibert 

489 

Knott 

670 

Pride,  In  re 

252 

Prudential  Insur.  Co.  v.  Thomas 

604 

Pride  V.  Andrew 

390 

Pruitt  V.  Pruitt 

138 

V.  Boyce 

487 

Pruner  v.  Pendleton 

637 

V.  Bubb 

169 

170 

Pryce  v.  Bury 

524 

Prideaux  v.  Lonsdale 

363, 

.395 

Public  Works  v.  Columbia  College 

!730 

Priewe  v.   Wise.  State  Land  & 

Puckett  V.  Benjamin 

138 

Imp.  Co. 

440 

Pugh  V.  Currie 

147 

Prince  v.  Barrow 

127 

V.  Good 

562 

Prince  Albert  v.  Strange 

647 

V.  Hayes 

87 

Pringle  v.  Dorsey 

207 

V.  Pugh 

146 

V.  Dunkley 

350 

Pullan  V.  C.  &  C.  Air  Line  R.  Co. 

261 

V.  Pringle 

113 

Pullen  V.  Placer  Co.  Bank        123 

268 

Printup  V.  Mitchell 

561 

Pulliam  V.  Newberry 

383 

Prioleau  v.  United  States 

83 

767 

Pullman  v.  Upton 

379 

Pritchard  v.  Elton 

240 

Car    Co.    V.    Central 

V.  Norwood 

274 

Transp.  Co. 

356 

V.  Ovey 

553 

V.  Tex.  &  Pac.  R.  Co. 

554 

V.  Wallace 

147 

Pulsford  V.  Richards               330 

335 

Probasco  v.  Johnson 

525 

Pulteney  v.  Darlington 

477 

Probett  V.  Walters 

300 

i;.  Shelton 

663 

Procter  &  Gamble  Co.  v. 

Globe 

Pumfrey,  In  re 

148 

Refining  Co. 

653 

Purcell  V.  Miner                       501, 

563 

V.  Bennis 

440 

V.  Purcell 

186 

V.  Ferebee 

72 

Purdy  V.  Lynch 

218 

V.  Putnam  Machine  Co. 

444 

V.  Purdy                         138, 

140 

V.  Spatley 

330 

Purvines  v.  Harrison 

299 

Professional  Life  Assurance  Co. 'a 

Purvis  V.  Brown 

236 

Case 

505 

V.  United  Brotherhood 

629 

Pronick  v.   Spirits  Distributing 

Pusey  V.  Desbouvrie 

296 

Co. 

668 

V.  Pusey 

540 

Proof  V.  Hines 

311 

Puterbaugh  v.  Elliott 

298 

Proseus  v.  Mclntyre 

141 

145 

Putnam  v.  Grace 

551 

CXXIV 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Putnam  v.  Misochi  482 

V.  Tinkler  552 

V.  Tyler  67,  445 

Nail  Co.  V.  Dulaney  650 

Pye,  Ex  parte  746,  747 

Pye  V.  Daubuz  538 

Pyle's  Appeal  465 

Pym  V.  Bowremann  235 

Pyne,  In  re  203 

Pyrke  v.  Waddingham  555,  556 


Quarles  v.  Quarles  342 

Queen  (The)  v.  Shropshire  Union, 

etc.,  Co.  275 

Queensland    Land   &   Coal   Co., 

In  re  68 

Quiggle  V.  Vining  675 

Quin's  Estate  179 

Quincy  v.  Chute  300 

Quincy,  Missouri  &  Pacific  Rail- 
road Co.  V.  Humphreys       508,  784 
Quinn  v.  Leathem  629 

V.  Roath  544 

Quinnipiac  Brewing  Co.  v.  Fitz- 
gibbons  505 


Raasch  v.  Raasch 
Rabbath  v.  Donaldson 
Rabe  v.  Dunlap 
Rachel  Colvin's  Case 


64 

189 

61,  62 

781 


Radant  v.  Werheim  Mfg.  Co.  438 

Radcliffe's  Ex'rs  v.  Wightman  692 

Radzuweit  v.  Watkins  586 

Rae  V.  Joyce  341 

Raffety  v.  King  236 

Raggett  i>.  Findlater  654 

Ragsdale  v.  Hagy  273 
Rahn  v.  Milwaukee  Electric  Ry. 

&  L.  Co.  639 

Raht  I'.  Attrill  784 

Raikes  «.  Ward  111 

Railroad  Co.  v.  Claghom  500 

V.  Dubois  439,  448 

V.  Dunlop  551 

V.  Garrison  595 


Railroad  Co.  v.  Soutter  297 

Railway  Co.  v.  Bennett  321 

V.  Cunningham  360 

V.  Manchester  Mills  491 

V.  McCarthy  438 

Rains  v.  Wheeler  190 

V.  White  650 

Rajah  of  Coorg  v.  East  India  Co.     767 

Raley  v.  Umatilla  Co.  I'.JS 

Rallason,  In  re  527 

Ralls  1'.  Hughes  700 

Ralphsnyder  v.  Shaw  320 

Ralston  v.  Ihmsen  543 

Ramirez  v.  Smith  421 

Ramsay  v.  Bell  695 

Ramsdell  v.  Butler  598 

Ramsey's  Appeal  256,  501,  502 

Rand  v.  Cartwright  235 

V.  Webber  300,  309 

Randall  v.  Bradley  235 

V.  Morrell  716,  782 

V.  Russell  158 

V.  Silverthorn  427 

Randolph  v.  Kinney  594 

V.  Quidnick  Co.  340 

V.  Randolph  692 

Ranelaugh  v.  Hayes  771,  772 

Rangeley  v.  Spring  449 

Ranger  v.  tlreat  Western  Ry.  Co.  688 

Ranken  v.  Alfaro  517 

Rankin  v.  Huskisson  578 

V.  Mortimere  242,  292 

V.  Rankin  245 

Ranney  v.  Byers  109 

Ransdell  v.  Moore  337 

Rapalee  i'.  Stewart  445 

Rardin  v.  Walpole  497 

Rath  V.  Vanderlyn  404 

Rathbone  v.  Warren  690 

Rathbun  v.  Rathbun  154 

Raton  Water  Works  Co.  v.  Raton  55 

Rau  V.  Von  Zedhtz  360 

Rauch   V.    Fort   Dearborn  Nat. 

Bank  600 

Rauen  v.  Ins.  Co.  296 

Ravald  v.  Russell  236 

Rawden  v.  Shadwell  346 

Rawlings  v.  Stewart  247 

Ray  I'.  Baker  334 


TABLE   OF  CASES. 


CXXV 


[The  references  are  to  the  pages.] 


Ray  V.  Doughty 

226 

V.  Norsworthy 

602 

V.  Simmons 

115 

Raybold  v.  Raybold 

108 

Raymond  v.  Chicago  Union  Tr. 

Co.  605 

V.  Flavel  60 

Rayner  v.  Rayner,  Rayner,  In  re  220 

V.  Rederiaktiebolaget        283 

Rayner  v.  Timerson  444 

Rea  V.  Wilson  69 

Read  v.  Bailey  722 

V.  Brayton  784 

V.  Long  545 

V.  Robinson  120 

V.  Simons  525 

Readdy  v.  Pendergast  371 

Reade  v.  Conquest  646 

V.  Livingston  385 

Reader  v.  Speake  736 

Reading  (Corporation  of)  v.  Lane  196 

Ready  v.  Smith  732 

Reagan  i\  Farmers'  Loan  &  Trust 

Co.  607 

Real  Estate  Co.  v.  Hatton  622 

V.  Spelbrink  551 

Real  Est.  Trust  Co.  v.  Bird  541 

V.  Hatton 

617,  622 
Rearich  v.  Swinehart  401 

Reaves  v.  Garrett  452 

Reddaway  v.  Banham  651,  658 

Redford  v.  Clarke  60,  432 

V.  Gibson  522 

Redgrave  v.  Hurd  330,  334 

Redhead    v.    Parkway    Driving 

Club  375 

Redman  v.  Green  692 

Redmayne  v.  Forster  525 

Redmond  ?'.  Sav.  Fund  439,  442 

Red  P.  Cattle  Club  v.  Red  P.  Cat- 
tle Club  658 
Reed's  Appeal  430 
Reed  v.  Aubrey  159 
V.  Bachelder                           488 
V.  Dickey                                 412 
V.  Gannon                                 422 
V.  McCourt  444 
V.  Minell  317 


Reed  v.  Sidener  327 

V.  Sperry  142 

V.  Vannorsdale  113 

Reed  (Thomas)  v.  The  Prior  of 

Launceston  12 

Reeder  v.  TruUinger  571 

Rees  V.  Berrington  501 

V.  City  of  Watertown         53,  56 

V.  De  Bemardy  343,  360 

V.  Waters  182,  186 

Reese  v.  Bradford  731 

V.  Livingstone  101 

V.Ruth  115 

V.  Wyman  330 

Reese  River  Mining  Co.  u.  Smith 

404,  679 

Reeve  v.  Whitmore  260 

Reeves  v.  Abercrombie  244 

V.  Baker  125 

V.  Morgan  280 

Refeld  v.  Woodfolk   ^  518,  775 
Regan  Vapor  Engine  Co.  v.  Pac. 

Gas  Engine  Co.  261,  264 

Regent  Shoe  Co.  v.  Haaker     652,  658 

Regina  v.  Cross  637 

V.  Pierce  637 

Rehden  v.  Wesley  219 

Reichert  v.  Railway  442 

Reid's  Adm'r  v.  Blackstone  126 

Reid  V.  Clendenning  466,  469 

V.  Fitch  147 

V.  Flippen  323 

V.  Gifford  633 

V.  Gordon  87 

V.  Lamar  173 

V.  Middleton  782 

V.  Mix  568 

V.  Reid  109 

Reidy  v.  Small  119 

Reigart  v.  White  500 

Reighard's  Estate  555 

Reilly  v.  Gautschi  552 

V.  Smith  551 

Reinhardt  v.  Mentasti  632 

Reith's  Estate  111 

Relf  V.  Eberly  310,  316 

Remington  v.  Irwin  568 

Remington  Paper  Co.  v.  O'Dough- 

erty  ■.            681 


CXXVl 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Remsen  v.  Hay 
Renard  v.  Clink 
Renison  v.  Ashley 
Rennyson  v.  Rozell 
Reno  V.  Moss 
Renz  V.  StoU 
Repass  v.  Jones 
V.  Moore 
V.  Richmond 


240 

294 

54 

544,  548 

545,  561 
109 

64 
496 
447 


RepubUcan    Mountain  Silver 

Mines  v.  Brown  669 
Republic  of  Costa  Rica  v.  Erlan- 

ger  776 
Peru  V.  Weguelin         776 

Reservoir  Co.  v.  Chase  296 

Resori).  Resor  147 

Respass  v.  Breckenridge  698 

V.  Jones  64 

Revell  V.  The  People  640 

Reves  v.  Toulman  287 

Revett  V.  Harvey  366 

Rex  V.  Akers  767 

V.  Arundel  281 

V.  Hare  ~              8 

V.  Newman  198 

Rey  V.  Lecouturier  651 

Reyburn  v.  Mitchell  492,  720,  732 

V.  Sawyer  625 

Reynell  v.  Sprye  331,  765 

Reynolds,  Ex  parte  378 

Reynolds  v.  Boland  64 
V.  Crawfordsville  Bank  777 

V.  Davis  628 

V.  Fibre  Co.  761,762,765 

V.  Godlee  471,472 

V.  Hennessy  223 

V.  Morris  139 

V.  Nelson  590,  592 

V.  Pitt  287 

V.  Tooker  504 

V.  Waterville  607 

Rhame  v.  Lewis  491 

V.  Rhame  186 

Rhea  v.  Forsyth  633 

Rhett  V.  Mason  126 

Rhines  v.  Baird  412 
Rhode  Island  Hosp.  Trust  Co.  v. 

Olney  194 

Rhodes  v.  Amsinck  737  | 


Rhodes  v.  Bate 
V.  Cook 
V.  Dunbar 
V.  Farmer 
Rhymer  v.  Fretz 
Rhyne  v.  Love 
Ricardi  v.  Gaboury 
Riccard  ik  Prichard 
Rice's  Appeal 


364 

637 
632,  635,  637 
402 
625 
691 
750 
267 
377, 497 


Rice  Milling  Co.  v.  Romero  578 

Rice  V.  Burnett  94 

V.  Dewey  440 

V.  Downing  487 

V.  Gibbs  547 

V.  Goffman  436 

V.  Hale  785 

V.  Morton  496 

1'.  Noakes  &  Co.  233 


243,  274,  275, 

414,  523 

142 

781 

397 

156,  159 

777 

169,  456 

477 

632,  635 

116,  271 

536 

117 


V.  Rice 

V.  Rigby 
V.  Tonnele 
V.  Waddill 
Rich  V.  Black 
V.  Braxton 
V.  Cockell 
V.  Whitfield 
Richard's  Appeal 
Richards,  In  re 
Richards  v.  Crews 

V.  Delbridge 

V.  East  Tenn.  Ry.  Co. 

749,  755 

V.  Green  551 

V.  Leammg  263,  525 

V.  Mackall  61,  404 

V.  Pitts  372 

V.  Railroad  Co.  445 

V.  Revitt  664 

V.  Salter  600 

Richardson  v.  Brooks  57 

V.  Buhl  356 

V.  Coffman  439 

V.  Doty  481 

V.  Graham  377 

V.  Green        313,  373,  521 

V.  Gregory      61,  405,  602 

V.  Inglesby  111 

V.  Linney  67,  367 


II 


TABLE   OF   CASES. 

CXXVll 

[The  ] 

references  are  to  the  pages.] 

Richardson  v.  Richardson 

117 

Riopelle  v.  Doellner 

56 

V.  Ridgely 

520 

Ripley  v.  Harris 

250 

V.  Rust 

267 

Ripple  V.  Kuehne 

404 

V.  Seevers 

144 

145 

V.  Ripple 

418 

V.  Wallis 

247 

Rippy  V.  Gant 

359 

V.  Washington 

162 

Risher  v.  Smith 

244 

V.  Drug  Co.  V. 

Mayer 

58 

Risley  v.  Phenix  Bank 

265 

Richerson,  In  re 

470 

Ritter's  Appeal 

115 

Richi   V.   Chattanooga    Brewing 

Rittson  V.  Stordy 

100 

Co. 

625 

Rivard  v.  Gardiner 

448 

Richmond  v.  Gray           555,  557, 

570 

Rivera  v.  White 

390 

V.  Ogden    Ry. 

Co. 

299 

Riverdale  Mills  v.  Alabama  Co. 

72 

V.  Raihoad  Co. 

547 

Rivers  v.  Durr 

755 

Richter  v.  Selin 

534 

V.  Wright  &  Co. 

265 

Rick's  Appeal 

117 

Riverside  Co.  v.  San  Bernardino 

Ricker's  Estate,  In  re 

222 

Co. 

58 

Ricker  v.  Scott 

299 

Rizer  v.  Perry 

469 

Ricketts  v.  Montgomery 

223 

Roach  V.  Duckworth 

587 

Rico  V.  Gaultier 

786 

V.  Hudson 

325 

Riddle  v.  Emerson 

106 

V.  Trood 

399 

Ridenbaugh  v.  Thayer 

540 

Roane  v.  Rives 

167 

Ridge  V.  Whitehill 

147 

Robb  V.  Shephard 

438 

V.  Penna.  R.  R.  Co. 

635 

Robbins  v.  Bates 

378 

Ridgeway's  Account 

307 

V.  Kimball 

138 

549 

Ridgeway  v.  Darwin 

756 

V.  Moore 

421, 437 

445 

V.  Newbold 

705 

Roberson  v.  Rochester 

Folding 

Ridgway's  Appeal 

718 

Box  Co. 

649 

669 

Ridgway  v.  Sneyd 

302 

Robert  v.  West 

175 

Ridings  v.  Johnson 

22 

Roberts's  Appeal 

144 

Ridley  v.  McNairy 

561 

Roberts,  In  re 

511 

Ridout  V.  Lewis 

181 

Roberts  v.  Anderson 

581 

Riegel  v.  Insurance  Co. 

298 

V.  Best 

494 

V.  Wood 

309 

V.  Croft 

525 

Riegi  V.  Phelps 

371 

V.  Dixwell 

99 

Riesz's  Appeal 

551 

V.  Eberhardt 

727 

Rife  V.  Geyer 

90,92 

101 

V.  Fleming 

419 

Rigby,  Ex  parte 

225 

V.  Lemont 

353 

Rigby  V.  Connol 

669 

V.  Mathews 

625 

Rigdon  V.  Walcott            311,  317 

679 

V.  McMahan 

244 

Rigg  V.  Ry.  Co.                 540,  547 

549 

V.  Moseley 

92 

Rigler  v.  Cloud 

99 

V.  Northwesterr 

I       Nat. 

Rigney  v.  Tacoma  Water 

Co. 

636 

Ins.  Co. 

442 

Rigsbee  v.  Trees 

298 

V.  Roberts 

159 

Rimma  v.  Webster 

76 

443 

V.  Rose 

523 

Rinaker  v.  Dollar  Savings 

Fund 

499 

V.  Taliaferro 

298 

Rinehart  v.  Harrison 

463 

V.  Totten 

691 

Ring  V.  Ashworth 

290 

V.  Walker 

513 

Ringgold  V.  Bryan 

520 

V.  Ware 

137 

t;.  Ringgold 

227 

V.  Yaw 

570 

CXXVlll 

rABLl']    O 

F    CASES. 

[The  references  are  to  the  pages.] 

Robertson  v.  Lewie 

59 

Rockwood  V.  Rockwood 

313 

V.  Parks 

330 

Rocky  Mt.  Tel.  Co.  v.  Tel.  Co 

653 

V.  Robertson 

137,  562 

Rodenhausen  v.  Craven 

632 

V.  Wheeler 

111 

Rodgers  v.  Burnett 

667 

Robeson's  Appeal 

503 

Rodick  V.  Gandell 

267, 

268 

270 

Robeson  v.  Hornbaker 

561, 565 

Rodijkeit  v.  Andrews 

266 

Robey's  Iron  Works  v.  Oilier         517 

Rogan  1'.  Walker 

235 

240 

,284 

Robey  v.  Hannon 

117 

Rogers  v.  Castle 

305 

Robinett's  Appeal 

222 

V.  Dill 

755 

Robinson  v.  Appleton 

520,  535 

V.  Erie 

577 

V.  Boyd 

482,  484 

I'.  Evans 

383 

V.  Buck 

394 

V.  Higgins 

174 

335 

,359 

V.  Bullock 

687 

V.  Hosack 

267 

V.  Campbell 

21 

V.  Ingham 

292, 

294 

297 

V.  Dart's  Ex'rs 

173 

V.  Jones 

417 

426 

V.  Dickey 

699 

V.  Meyers 

238 

V.  Farelly 

240 

V.  Mining  Co. 

535 

V.  Governors  of  London 

V.  Murray 

140 

Hospital  (The)       467, 

V.  N.Y.  &Tex. 

Land  Co. 

154 

472,  513 

V.  Pattie 

684 

V.  Harkin 

225 

V.  Rathbun 

344 

V.  Iron  Ry.  Co. 

680 

V.  Rogers 

190 

V.  Kunkleman 

481 

V.  Saunders 

543 

568 

V.  Loomis 

286 

V.  Smith 

173 

V.  Lord  Byron 

574,  578 

V.  Street  Ry. 

436 

V.  Luther 

534 

V.  Thornton 

329 

V.  Macdonnell 

257,  390 

V.  Ward 

171 

176 

V.  McKenna 

383 

V.  Waterhouse 

555 

V.  Owens         518 

520,  522 

r.  Williams 

549 

V.  Rett 

223,  224 

Rogers,  R.  W.  Co.  i'.  Wm.  Rogers 

V.  Robinson     135 

222,  476 

Co. 

656 

V.  Russell 

617 

Rohrback  v.  Insurance 

Co. 

175 

V.  Storm 

649,  655 

Rohrof  i\  Schulte 

334 

V.  Trufant 

569 

Roland  i'.  Lancaster  Bank 

529 

V.  Urquhart 

525 

V.  Miller 

466 

V.  Wheeler 

586 

RoUason,  In  re 

527 

V.  Willoughby 

243 

Rollins  r.  Mitchell 

338 

7J.  Wilmington 

605 

Roney  v.  Moss 

545 

Robinson  et  al.  (Matter  of) 

257 

Roosevelt  v.  Thurman 

306 

Robson  V.  Doyle 

766 

Root  V.  Reynolds 

383 

?'.  Whittingham 

632,  636 

Roper,  In  re 

172 

Roby  V.  ('olehour             1.37 

162, 370 

Rorer  Iron  Co.  v.  Trout 

327 

421 

Roche  ('.  George's  Ex't'r 

111 

Rorke  v.  .\braham 

132 

Rochester  Distilling  Co.  ?'.  Rasey 

Roscarrick  v.  Darton 

233 

261,  526 

Rose  V.  Gandy 

243 

Rockafi-Uow  v.  Xewcomb 

366 

V.  Hart 

480 

Rockwell  V.  Hobbj' 

525 

V.  Jessup 

464 

;;.  Lawrence 

683 

V.  Swann 

549 

V.  Morgan 

705 

V.  Watson 

523 

tablp:  of  cases. 

CXXIX 

[The  references  are  to  the  pages.] 

Roshi's  Appeal 

666 

Rumboll,  Ex  parte 

602 

Roskell  V.  Whitworth 

638 

Rumfelt  V.  Clemens 

449 

Ross  V.  Army  and  Navy  Hotel 

68 

Rumford  Market  Case 

155,  223 

V.  Butler 

632 

Rumph  ?'.  Abercrombie 

359 

V.  Conway 

364 

Rum.sey  v.  N.  Y.  &  P.  R.  R 

Co. 

V.  Gibbs 

766 

767 

539,  541 

V.  Hendrix 

422 

Runstetter  w.  Atkinson 

542 

V.  Parks 

552 

Runyan  v.  Mersereau 

243,  269 

II.  Union  Pac.  R.  Co. 

540 

553 

Ruoiis  ?'.  The  Bank 

403 

Roszell  V.  Roszell 

301 

440 

Rupert  V.  Mark 

418, 421 

Rotch  V.  Emerson 

209 

Ruppel  V.  Missouri,  etc., 

Ass 

n          67 

Rothenbarger  v.  Rothenbar 

ger 

366 

Rush  V.  Lewis 

92 

Rothschild  v.  Bay  City  Lumber 

Rushmer  v.  Polsue 

633 

Co. 

235 

Russell's  Appeal 

119,  496 

Rouchefoucauld  v.  Boustead 

104 

138 

Russell  V.  Bomy 

402 

Roundel  v.  Currer 

460 

11.  Church 

300 

Rounds  V.  McCormick 

734 

V.  Clark 

313 

Roundy  v.  Kent 

302 

676 

V.  Farley 

684 

Roussain  v.  Norton 

421 

V.  Fuel  Gas  Co. 

373, 377 

Row  V.  Dawson         257,  258 

266 

269 

V.  Jackson 

112, 148 

Rowan  v.  Sharps'  Rifle  Mfg. 

Co. 

249 

V.  Miller 

481 

Rowand  v.  Finney 

402 

V.  Mixer 

29S 

Rowe  V.  Hambergar 

659 

V.  Russell    374, 

397 

524,  562 

V.  Johnson 

144 

V.  Sharp 

394 

Rowell  V.  Claggett 

199 

V.  Southard 

240 

, 245,  677 

Rowland  v.  Stanford 

586 

V.  Wade 

338 

Rowlands  v.  Evans 

715 

V.  Watt 

518 

Rowley  v.  Rowley 

400 

Rutgers  v.  Kingsland 

414 

Rowth  V.  Howell 

219 

Ruth  V.  Oberbrunner 

146,  192 

Royal  League  v.  Kavanagh 

73 

Rutherford  r.  Douglass 

781 

Royall  V.  Garter                   11,  12 

580 

I'.  Jones 

693 

Royer's  Appeal 

219 

V.  Tracy 

444 

Rozell  V.  Vansyckle 

338 

Rutledge  v.  Greenwood 

500 

Rozier  v.  Griffith 

698 

Rutz  V.  Kehn 

451 

Rubber  Co.  v.  Rothery 

446 

447 

R.  W.  Rogers  Co.  v.  Wm.  Rogers 

Rubber  Mfg.  Co.  v.  Supply  Co. 

;')S5 

Co. 

656 

Ruckman  v.  Astor 

247 

Ryall  ?)   Dawson 

272 

V.  Cory 

61 

V.  Rowles      255, 

256, 

265,  269, 

V.  Decker 

407 

271, 

272 

273,  274 

Rudd  V.  Matthews 

438 

Ryan  v.  Brown 

619 

Rudisell  v.  Watson 

167 

168 

V.  Dox 

325 

Rudisill  V.  Whitener 

548 

V.  Growney 

450 

Rudolph  V.  Winters 

346 

V.  Hamilton 

351,  663 

Ruffell's  Appeal 

267 

t).  McLane 

551 

Ruffier  ?'.  Womack 

243 

V.  Middlesborough     Town 

Ruffin,  Ex  parte 

720 

Lands  Co. 

327 

Ruffles  V.  Alston 

184 

V.  Mockmath 

680,  681 

Ruffner  v.  Ridley 

320 

V.  Price 

364 

Rugge  V.  Ellis 

566 

V.  Ryan 

374 

cxxx 


TABLE    OF   CASES. 


[The  refierences  are  to  the  pages.] 


Ryan  v.  Westminster  Chambers 

Association  554 

Ryason  v.  Dunten  62 

Ryder  v.  Bickerton  220 

V.  Emrick  404 

Ryland  v.  Banks  175 

Ryle  V.  Ryle  372 

Ryman  v.  Gerlach  418,  434 

Rynd  v.  Baker  117,  119 


Sabel  V.  Slingluff  736 

Sabele  v.  Sabele  704 

Sabin  v.  The  Bank  of  Woodstock  271 
Sackett  v.  Stone  496 

Sackville-West  v.  Holmesdale  95,  96, 

97 

Saffer  v.  Mast  371 

Safford  v.  Ensign  Mfg.  Co.      768,  769 

V.  Rantoul  107 

Sage  V.  Memphis  &  Little  Rock 

R.  Co.  732,  734 

V.  Winona  &  St.  Peter  R. 

R.  Co.  778 

Sailor  v.  Hertzog  421 

Sale  i\  Moore  125 

Salemonson  r.  Thompson  383 

Salisbury  (Earl  of)  v.  Cecil  764 

Salisbury  (Matter  of)  755 

SaHsbury  v.  Clarke  108,  109,  141, 154 
V.  Slade  466 

Salmon,  In  re  221 

Salmon  v.  Bennett  386 

V.  Clagett  617 

V.  Gibbs  399 

Salomon  v.  Martin  519 

V.  Salomon  387 

Salsbury  v.  Black  326 

Salt  11.  Marquis  of  Northampton     239 
Salter  v.  Salter  217 

Saltonstall  v.  Sanders  209 

Saltus  V.  Bedford  Co.  649 

Salusbury  v.  Denton  132 

Sample  v.  Coulson  137 

Sampson  v.  Shaw  353 

Samuel  v.  Wiley  785 

Samuell  v.  Howarth  501 

Samuels  v.  Spitzer  658 


Sanborn  ik  Kittredge 

52 

r.  Sanborn 

562 

Sanders  v.  Beck 

245 

V.  Devereux 

54,  695 

V.  Logan 

644 

V.  Newton 

549 

V.  Rodway 

189 

V.  Steele 

138 

V.  Village  of  Yonkers        777 
V.  Wilson  247 

Sandford  v.  Weeden         135,  142,  147 
Sandoe's  Appeal  460 

Sands  v.  Durham  490,  497,  498 

Sanfoss  ?-.  Jones  138 

Sanitas  Food  Co.  v.  Cemer  610 

Sankey  v.  Hawley  244 

Sanquinett  v.  Webster  222 

Sanquirico  v.  Benedetti  662 

Santley  v.  Wilde  241,  242 

Sappington  v.  School  Fund  Trus- 
tees 209 
Saratoga,  etc.,  R.  Co.  ?;.  Rowe        403 
Sargeant  i\  Sargeant                         273 
Sargent  r.  Baldwin  119 
V.  Burdett  101 
Sarles  ik  Sarles                                  460 
Sarter  v.  Gordon                               541 
Sartor  v.  Schaden                              651 
Satterthwait  v.  Marshall                  542 
Saunders's  Case                                616 
Saunders  v.  Cramer                         537 
V.  Dehew                          412 
V.  Edwards  96 
Saunders-Davies,  In  re                    51 1 
Savage  v.  Jackson                            334 
i>.  Winchester                      486 
Savannah  Nat.  Bank  v.  Haskins     282 
Savannah,  etc.,  R.  Co.  v.  Shiels      625 
Savery  v.  King                  311,  341,  ,363 
Savings  Bank  v.  Merriam                114 
Savings  Inst.  v.  Titcomb                114 
Savoie  v.  Meyers                        67,  335 
Sawer  v.  Gosser                                668 
Sawyer,  In  re                         55,  58,  591 
Sawyer  v.  Cook                                  60 
V.  Hoag                               733 
V.  Hovey                             300 
V.  Prickett                            321 
V.  Upton                              733 


TABLE    OF    CASES. 


CXXXl 


[The  references  are  to  the  pages.] 


Sawyer  v.  Wallace 

V.  White 
Saxby  v.  Laurence 
Saxlehner  v.  E.  &  M.  Co. 
Saxton  V.  Davis 
Sayer  v.  Humphrey 


552 
369 
13 
317 
732 
303 


Sayers  v.  Collyer      440,  661,  664,  683 

Saylor  v.  Mockbie  716 

V.  Penn.  Canal  Co.      641,  669 

Sayre  v.  Hughes  144 

V.  Newark  63.'> 

V.  Townsends  139 

V.  Weil  114 

Says  V.  Barnes  368 

Scales  V.  Ashbrook  299 

V.  Maude  116 

Scanlan,  Infants,  In  re  754 

Scanlin  v.  Conshohocken  54 

Scannell  v.  Amer.  Soda  Fountain 

Co.  569 

Scarlett  v.  Gorham  428 

Scarsdale  v.  Curzon  97 

Scattergood  v.  Kirk  374 

Schafer  v.  Reilly  274 

V.  Wilson  442 

Schaffner  v.  Young  605 

Schafroth  v.  Ambs  175 

'  Scharf  v.  Moore  175 

Scheetz's  Appeal  620 

Scheile  v.  Brakell  649 

Schenck  v.  Ellingwood  305 

Scherck  v.  Montgomery  541 
Schermerhorn  v.  De  Chambrun's 

Admr.  65 

Schiefflin  v.  Stewart  222 

Schierloh  v.  Schierloh  146 

Schilb  V.  Moon  490 

Schilling  v.  Black  439 

Schivier  v.  Zitike  666 

Schlaefer  v.  Corson  147 

Schlechfs  Appeal  781 

Schmaltz  v.  Avery  448 

V.  York  Mfg.  Co.  71 

Schmalz  v.  Wooley  649 
Schmidtz  v.  L.  &  N.  R.  R.  Co.       554 

Schmitheimer  v.  Eiseman  310 

Schmucker's  Estate  )'.  Reel  151 

Schneider  v.  Hildenbrand  553 
V.  City  of  Rochester         58 


Schnell  v.  Chicago  449 

Schnitzel's  Appeal  485 

Schnorr's  Appeal  666 
Schofield  v.    Ute    Coal  &  Coke 

Co.  729 
Scholefield  v.  Templer  296,  315,  336 
School  v.  Kirwin                       148,219 

School  District  v.  Cowgill  56 

V.  Rice  54 

Schoole  V.  Sail  592 

Schools  (Trustees  of)  v.  Sheik  417 

Schoonmaker  v.  Van  Wyck  223 
Schotmans  v.   Lancashire  Rwy. 

Co.  529 

Schrack  v.  Shriner  489 

Schraeder  Min.  Co.  v.  Packer  444 

Schraflft  v.  Wolters  540 

Schrager  v.  Cool  137 

Schramm  v.  Haupt  331 

Schroder  v.  Schroder  456 

Schroeder  v.  Loeber  57 

V.  Young  340 

Schroeppel  r.  Hopper  535 

Schuey  r.  Schaeffer  562 
Schulenberg-Boeckler      Lumber 

Co.  V.  Hayward  594 

Schultz  V.  McLean  445 

V.  Sroelowitz  274 

Schumaker  v.  Mather  322 

Schumm  v.  Seymour  606 

Schuttler  v.  Brandfass  296 

Schuyler  ?;  Curtis  669 

Schuylkill  (County  of)  v.  Copley  316 

Schwab  I'.  Edge  446 

Schwartz  v.  Gerhardt  148 
Schwarz  v.  Stein  522,  523 
Schwarzwaelder  v.  German  Mut. 

Fire  Ins.  Co.  668 

V.  Tegen  668 

Schwass  I'.  Hershey  674 

Schwind  v.  Boyce  419 

Schwindt  v.  Schwindt  547 

Scofield  V.  Eighth  School  Dist.  668 

V.  Lansing  777 

V.  Railway  Co.  576 

Scotch  Lumber  Co.  t'.  Sage  419 

Scott's  Admrx.  v.  Soott  57 

Scott  V.  Armstrong  481 

V.  Becher  608 


CXXXll 


TABLE  OF  CASES. 


[The  references  are  to  the  pages.] 


Scott  V.  Billgerry 

566 

V.  Brown 

325 

V.  Bryan 

167 

,168 

V.  Bumight 

322 

V.  Burton 

660 

V.  Coulson 

300 

V.  Edgar 

519 

,521 

V.  Firth 

638 

V.  Gallagher 

427 

V.  Hall 

301 

V.  Harbeck 

114 

V.  Henry 

236 

V.  Indianapolis     Wage 

an 

Works 

382 

V.  Land  Mfg.,  etc.,  Co 

496 

V.  Latimer 

324 

V.  Lewis 

421 

V.  Lord  Hastings 

270 

V.  Moore 

446 

V.  Rayment 

712 

I'.  Standard  Oil  Co.~ 

654 

i;.  Tyler           347,  348, 

349 

350 

V.  Umbarger 

159 

Scoville  V.  Brock 

367 

V.  Kennedy 

697 

Scraper  Co.  v.  Stickleman 

299 

Screven   v.  Joyner 

481 

Scroggins  v.  McDougald 

421 

Scruggs  V.  Blair 

718 

V.  Decatur     Minera 

I     & 

Land  Co. 

61 

Scrutchfield  v.  Sauter 

444 

Scudamore  v.  Scudamore 

468 

Scudder  v.  Vanarsdale 

463 

Scully  I'.  Rose 

622 

Seaboard  R.  R.  Co.  v.  W.  &  A. 

R.  R.  Co. 

554 

Seaman  v.  Cook 

138 

148 

V.  Harmon 

704 

Sears  v.  Attorney-General 

199 

V.  Grand  Lodge 

295 

V.  Laforce 

491 

V.  Munson 

421 

V.  Shafer 

370 

17.  Smith 

519 

Sebring  i'.  Mersereau 

555, 

696 

Second  Nat.  Bank  (Appeal  of) 

718 

Second  Nat.  Bank  of  Titusville 

V.  CaldweU 

603 

Second  Ref.   Presby.  Church  v. 
Disbrow 

Secrest  v.  McKenna 

Security  Trust  Co.  v.  Goble  R.  R. 
Co. 
V.  Wilhammette  Co. 

Seda  r.  Huble 

Sedalia  Brew.  Co.  i 
Co. 

Seechrist's  Appeal 

Seekel  v.  Winch 

Seeley  v.  Jago 

Seibert  v.  Seibert 

Seiler  v.  Mohn 

Seitzinger's  Estate 

Seixo  V.  Provezende 

Selah  V.  Selah 

Seldon's  Appeal 

Sell  I'.  West 

Selleck  v.  Thompson 

Sellers  v.  Penna.  R.  Co. 

Sellers  Church's  Petition 

Sellman  v.  Bowen 

Sellors  V.  Board  of  Health 

Sells  r.  Sells 

Selz,  etc.,  Co.  v.  Mayer 

Senior  r.  Pritchard 

Sensinger  v.  Boyer 

Sercomb  v.  Catlin 

Servis  v.  Nelson 

Seton  V.  Slade 

Settle  V.  Winters 

Sewall  V.  Glidden 

Sexton  V.  Breese 

?•.  Wheaton  382,  384, 386, 389, 
390,  393,  408,  731 

Seylar  v.  Carson  325,  337,  343 

Seymour  v.  Aultman  266 

V.  Darrow  250 

I'.  Delancey  339,  557 

V.  Dock  Company  688 

V.  Hazard  786 

V.  Ricketts  695 

SejTHour  Water  Co.  v.  Seymour     682 

Shade  v.  Oldroyd  288 

Shadewald  v.  White  157 

Shaeffer  v.  Chambers  247 

V.  Sleade  328 

Shaffer  v.  Detie  421 


126 

67 

508 
421 
216 
S.  W.  W. 

575 

161,  337 
389 
476 

715,  716 
140 
91 
650,  654,  658 
361 
111 
141 
210 
637 
212 
705 
637 
300 
721 
762 
447 
73 
95 

535,  565 
569 
393 
235 


r 

FABLE    OF   CASES. 

CXXXlll 

[The 

»  references  are  to  the  pages.] 

Shaffer  v.  Fetty 

148 

Shelby  v.  Smith 

290 

Shall  V.  Biscoe 

519 

V.  Tardy 

142 

Shamwald  v.  Lewis 

729 

Sheldon  v.  Centre  School  Dist. 

668 

Shanahan  v.  Kelly 

207 

u.  Harding 

137 

Shand  i\  Du  Buisson 

268 

V.  Sill 

2.38 

Shaokland's  Appeal      90,  92,  94 

101 

Shelfer  v.  City  of  London  Electric 

Shannon  v.  Bradstreet 

305 

Co. 

633 

Shapira  v.  D'Arcy 

325 

Shelley  v.  Shelley 

97 

Sharon  v.  Tucker 

281, 

290 

593 

V.  Westbrooke 

752 

Sharp  V.  Am.  Freehold  and  Mfg. 

Shelly  V.  Brannan 

644 

Co. 

424 

V.  Nash 

341 

.343 

V.  Bank 

494 

Shelton  v.  Lewis 

147 

V.  St.  Sauveur 

100 

V.  Piatt 

605 

V.  Taylor 

66 

390 

V.  Shelton 

106 

Sharpless's  Estate 

92 

Shepard  v.  McEvers 

120 

Sharpless  v.  Welsh 

111 

Sheperd  v.  Adams 

489 

Shartel's  Appeal 

297 

Shepherd  v.  Bevin 

339, 

547 

Shattock  V.  Shattock 

171 

V.  Churchill 

697 

Shattuck  V.  Am.  Cement  Co. 

418 

V.  McEvers 

215 

V.  Carson 

777 

V.  Mouls 

222 

V.  Robbins 

327 

V.  Sanford 

52 

V.  Watson 

64 

362 

V.  Shepherd 

545 

Shaver  v.  Heller  &  Merz  Co. 

65, 

657 

V.  White 

144, 

145 

V.  Radley 

216 

Sheridan  v.  Sheridan 

467 

Shaw  V.  Allen 

680, 

777 

Sherk  v.  Endress 

113 

V.  Ball 

363 

Sherling  v.  Long 

482 

V.  Fisher 

539 

Sherman  v.  Cong.  Miss.  Soc 

197 

210 

V.  Foster 

535 

V.  Dodge 

89,  93 

V.  Neale 

250 

V.  Frasier 

403 

V.  Spencer 

440 

V.  Herr 

539 

V.  Thackray 

361 

V.  Sherman 

691 

Shawano  Co.  Bank  v,  Koeppen 

388 

V.  Wright 

544 

Sheafe  v.  Sheafe 

382 

Sherrin  v.  Fhnn 

327 

363 

Sheaffer's  Appeal 

151 

Sherry  v.  Sansberry 

368 

Shear  v.  Robinson 

294 

Sherwood  v.  Cent.  Mich.  Savings 

Shearer  v.  Shearer 

717 

Bank 

148 

Sheddon  v.  Goodrich 

454 

456 

Shevlin  v.  Shevlin 

374 

Sheets's  Estate 

111 

Shew  V.  Bank  of  Pittsburg 

235 

Sheffer  v.  Montgomery 

147 

Shewell  v.  Dwarris 

168 

Sheffield  v.  Parker 

110 

Shields  v.  Lozear 

233 

234 

Sheffield    (Earl    of)    v. 

London 

Shimp's  Assigned  Estate 

499 

Joint  Stock  Bank 

418, 

423 

43< 

Shinkle  v.  Covington 

.585 

Sheffield,  etc..  Building 

Soc.  V. 

Shipley  r.  Ritter 

621 

Aizlewood 

221 

373 

Shipman  v.  ^tna  Ins.  Co. 

271 

Sheffield  Co.  v.  Sheffield  Co. 

655 

V.  Furniss 

366 

Sheffield  Water  Works 

V. 

5feo- 

V.  Lord 

69 

mans 

593 

V.  Shipman 

563 

Shelburiie  v.  Inchiquin 

401 

Ship  Warre,  In  re 

257 

Shelby  v.  Perrin 

520 

Shirley  v.  Goodnough 

689 

CXXXIV 


TABLE  OF  CASES. 


[The  references  are  to  the  pages.] 


Shirley  v.  Shirley 
Shirras  v.  Caig 
Shitz  V.  Diffenbach 
Shoemaker  v.  City 


166,  179 

250,  251 

525 

58 


V.  Commissioners         216 

V.  Smith  138,  139 

V.  Walker  99 

Shonk  r.  Brown  173 

Shontz  V.  Brown  390 

Shook  V.  Southern  Bldg.  Ass'n     429 

Shorner  v.  Spear  64 

Short  V.  Battle  174 

V.  Mathis  403 

V.  Moore  182 

V.  Stevenson  377 

Shottenkirk  v.  Wheeler  586 

Shotwell's  Admr.  v.  Smith  56 

Shotwell  V.  Lawson  54 

V.  Mott  196 

V.  Murray  292 

V.  Smith  762 

Shoup  V.  Cook  680 

Shovelton  v.  Shovelton  128,  129 

Shreve  v.  Brereton  284 

V.  McGowin  160 

Shrimsher  v.  Newton  521 

Shriver  v.  Garrison  301,  302,  403 

Shropshire  Union  R.  &  C.  Co.  v. 

The  Queen  77 
Shropshire  v.  Ryan  370 
Shubrick  i'.  Guerard  659 
Shulte  I'.  Hoffman  715,  716 
Shulze's  Appeal  390 
Shumaker  v.  Davidson  387 
Shunk's  Appeal  502,  506 
Shute  V.  Heath  353 
V.  Hinman  150 
V.  Shute  700 
Shuttleworth  v.  Greaves  459 
Sibley  v.  Holcomb  310 
Sickles  V.  Gloucester  Manufac- 
turing Co.  644 
Sidney  v.  Shelley  151 
Sieveking  v.  Litzler  323 
Siggers  v.  Evans  120 
Sigoumey  v.  Munn  716,  719 
Silk  V.  Prime  720,  721,  722,  723, 
724,  725,  726,  739 
Sillasen  v.  Winterer  620 


Sillers  v.  Lester  259 

Sillitoe,  Ex  parte  722 

Silloway  v.  Neptune  Ins.  Co.  440 

Silver  Lake  Bank  v.  North  492 

Silverman  v.  Kristufek  85 

Silvers  v.  Potter  108 

Silvey  v.  Dowell  497 

Simar  v.  Canaday  323 

Sime  V.  Howard  107,  108 

V.  Norris  340,  344 

Simis  V.  McElroy  555 
Simmons  i'.  London  Joint  Stock 

Bank  423 

V.  Tongue  720 

Simond's  Estate  162,  369 

Simons  i\  Vulcan  Oil  Co.  377 

Simpson's  Lessee  v.  Ammons  234 

Simpson  i'.  Ennis  496 

V.  Hart  480,  587 

V.  Hotel  Company  668 

V.  Mundee  519 

V.  Simpson  190,  397 

V.  Vaughan  678 

Sims  V.  Lyle  278 

V.  Phillips  388 

V.  Rickets  188 

V.  Sims  512 

V.  Spalding  184 

Sinclair  v.  Jackson  225,  226 

Singer's  Estate  342 

Singer  v.  Troutman  500 

Singer  Manufac.  Co.  v.  Domestic 

Sew.  Machine  Co.  670 

Singer  Mfg.  Co.  v.  June  Mfg.  Co.     655 
Singer  Sew.  Mach.  Co.  v.  Union 

Buttonhole  Co.  662 

Siplcy  V.  Wass  187 

Sipola  V.  Winship  323 

Sisemore  v.  Pelton  137 

Siter  V.  McClanachan  468 

Six  V.  Shaner  138 

Skeen  v.  Marriott  i08,  111 

r.  Patterson  569 

Skehill  V.  Abbott  139 

Skett  V.  Whitmore  106 

Skillman  v.  Skillman  137 

Skilto.i  V.  Tiffin  382 

V.  Webster  57 

Skinner  v.  Dayton  283,  714 


TABLE    OF   CASES. 


CXXXV 


[The  references  are  to  the  pages.] 


Skinner  v.  Harrison  Twp. 

216 

Smith  V.  AttersoU 

112 

V.  Judson 

765 

V.  Auditor  General 

67 

V.  Miller 

240,  244 

V.  Austin 

236 

V.  Oakes 

264,  652 

V.  Baker 

538 

V.  Tirrell 

187 

V.  Bank 

593 

Skipp  V.  Harwood 

720 

V.  Bate 

753 

Skipwith  V.  Strother 

346,  589 

V.  Bates  Machine  Co. 

259,  265, 

Skirving  v.  Nat.  Life  Ins.  Co 

585 

269 

Skrainka  v.  Scharringhausen 

355 

V.  Bell 

131 

Slade  V.  Barlow 

695 

V.  Boquet 

135 

V.  Rhodes 

263 

V.  Bourbon  Co. 

732 

Slaney  v.  Maxwell 

339 

V.  Bouvier 

346 

V.  Oriental  Mills 

150 

V.  Bowen 

132 

V.  Sidney 

600 

V.  Boyd                   312 

,  419,  447 

Slayback  v.  Witt 

369 

V.  Brotherline 

371 

Slee  V.  Bloom 

691 

V.  Brown 

447 

Sleight  V.  Roe 

158 

V.  Bumham 

22 

Slemmer's  Appeal 

643, 782 

V.  Butler 

454 

Slevin,  In  re 

204 

V.  Caldwell 

439 

Slevin  v.  Brown 

94 

V.  Carll 

17 

Slicker  v.  Schuchert 

436 

V.  Chadwick 

320 

Slingluff  V.  Eckel 

326 

V.  Cherrill 

383,  386 

Sloan  V.  Cadogan 

118 

V.  Chichester 

158 

V.  Gibbes 

483 

V.  Claxton 

470,  471 

V.  Moore 

782 

V.  Clay 

404,  405 

V.  Rose 

557 

V.  Constant 

524 

V.  Sloan 

776 

V.  Cooke 

151 

Sloane  v.  Clauss 

588 

V.  Countryman 

328 

Slobodisky  v.  Curtis 

267 

V.  Drake 

228 

Slocombe  v.  Glubb 

396 

V.  Dye 

321 

Slocum  V.  Marshall 

111,  363 

V.  East  India  Co. 

767 

V.  Slocum 

469 

V.  Fletcher 

439 

Slocumb  V.  Chicago,  B.  &  Q.  Ry. 

V.  Floyd 

132 

Co. 

440 

t;.  Fly 

566 

Small's  Estate. 

222 

V.  Gardner 

620 

Small  V.  Lutz 

55 

V.  Harrington 

89,  197 

Smallman  v.  Onions 

617 

V.  Haytwell 

658 

Smaltz's  Appeal 

535 

V.  Iliffe 

97 

Smart,  Ex  parte 

517 

V.  Ingram 

449 

Smedberg  v.  Mark 

786 

V.  Jewett 

288 

Smick  V.  Beswick 

60 

V.  Kane 

183 

Smiley  v.  Bell 

276 

V.  Kay           335,  362, 

365,  366 

V.  Wright 

99 

V.  Kelley 

683 

Smith,  In  re 

218 

V.  Kemochen 

238 

Smith's  Appeal 

419 

V.  Knowles 

190 

Smith's  Case 

324 

V.  Leveaux 

690 

Smith's  Estate     • 

116,  200 

V.  Low 

420 

Smith  V.  Allen 

519 

V.  Lowry 

587 

V.  Amer.  Nat.  Bank 

22 

V.  Manning's  Ex'r 

235 

L'XXXVl 

I'ABLE   e 

[The 

refarences 

Smith  V.  Mason 

483,  484 

V.  Matthews 

109 

V.  Maxwell 

97 

V.  McConnell 

594 

V.  McCrary 

463,  469 

V.  McDougal 

292 

V.  McNeal 

442 

V.  Miller 

159 

V.  Moors 

64 

V.  Oliver 

87 

V.  Pearson 

680 

V.  Peters 

553 

V.  Phillips 

545 

V.  Pfluger 

244 

V.  Poyas 

616 

V.  Richards 

320,  330 

V.  Rockwell 

280 

V.  Sackett 

142 

V.  Schweigerer 

422 

V.  Sheldon 

548 

V.  Short 

54 

V.  Smith       220,  291,  369,  370, 
397,  439,  562,  577,  593, 
608,  693,  695,  697,  698, 
721,  768 
V.  Snowden  369 

V.  Somes  399 

V.  Starr  179 

V.  Stephens  492 

V.  Stone  392 

V.  Sturgess  550 

V.  Thomas  777 

V.  Thompson  218,  263 

V.  Townshend  372 

V.  Turley  61,  62,  140,  142,  150  [ 
V.  Turner  555 

V.  Underdunck  562 

V.  Wheeler  302 

V.  Wood  316 

V.  Worthington's  Adm'r       586 
V.  Wright  138 

Smith-Dimmick  Lumber  Co.  v. 

Teague  731 

Smith  &  Fleck's  Appeal  552,  617 
Smith  &  Wolfs  Appeal  729 

Smithsonian  Inst.  Case  195,  197,  216 
Smithurst  v.  Edmunds  261,  583,  588 
Smoot  V.  Judd  586 

V.  Rea  544 


Smull  V.  Jones  343 

Smullin  v.  Wharton  337 

Smyth  V.  Fitzsimmons  175 

Smythe  v.  Smythe  349 

Snader  v.  Slingluff  109 

Sneed  v.  Atherton  698 

Snelgrove  v.  Earl  302 

V.  Snelgrove  412,  454, 

459,  705,  706 

Snell  V.  Bank  436 

V.  Dwight  66 

V.  Elam  142 

V.  Ins.  Co.        292,  295,  298,  674 

Snelling  v.  Utterback  135,  142 

Snider  v.  Rinehart  586 

V.  Snider  194 

Snively  v.  Hitechew  428 

Snook  V.  Snetzer  73 

V.  Zentmyer  62 

Snow  V.  Russell  777 

Snyder's  Appeal  179 

Snyder  v.  Christ  387 

V.  Ives  302 

V.  Snyder  167 

V.  Wolford  137 

Soar  V.  Ashwell  104,  105,  134 

V.  Foster  145 

Soberanes  v.  Soberanes  364 

Society    Generale    de    Paris    v. 

Walker  271 

Societ}^  of  the  Cincinnati's  Ap- 
peal 229 
Society  for  Propagation   of  the 

Gospel  V.  Town  of  Hartland         93 
Sohler  v.  Sohler  313 

Solomon  v.  Fleming  606 

Soltau  V.  De  Held  625,  632,  634,  638 
Somers  v.  Craig  167 

Somerset  (Duke  of)  v.  Cookson  540 
Somerville  Com'rs  v.  Johnson  588 
Somerville  v.  Coppage  550 

Somes  V.  Skinner  367 

Sonley  v.  Clockmaker's  Co.  216 

Soper  V.  Guernsey  238 

Sorrel  v.  Carpenter  427 

Souder's  Appeal  684 

South,  Ex  parte         •  266 

Southard  v.  Curley  674 

South  Car  Co.  v.  Augusta  Co.         288 


South  Eastern  R.  Co.  v.  Brogden 

587,  690 
Southern  v.  How  650 

Southern    B.   and    L.   Ass'n    v. 

Page  440, 496 

Southern  Electric  Co.  v.  State  355 
Southern  Fire  Brick  Co.  v.  Sand 

Co.  351, 663 

Southern  Mining  Co.  v.  Lowe  607,  613 
Southern  Pacific  Co.  v.  Robinson  596 
Southern   Pacific  R.   R.   Co.   v. 

United  States  54,  55 

Southern  Ry.  Co.  v.    Carnegie 

Steel  Co.         510 
V.  Franklin, 
etc.,  R.  R.  Co.         549,  554 
V.  Hood  439 

Southern  Warehouse  Co.  v.  Oz- 

ment  674 

South  Dakota  v.  N.  C.  53 

South  Develop.  Co.  v.  Silva  321,  680 
South,  etc.,  R.  R.  Co.  v.  High- 
land Ave.,  etc.,  R.  R.  Co.         545, 

547,  549,  550 
South  Penn.  Oil  Co.  v.  Edgell  287 
South  Portland  Land  Co.  v.  Mun- 

ger  58 

Southwark  &  Vauxhall  Water  Co. 

V.  Quick  766 

Sou  verb  ye  v.  Arden  115,  116,  154 
Sowers  v.  Parker  323 

Spackelford  v.  Collin  382 

Spackman  v.  Ott  391 

Spader  v.  Davis 

V.  Lawler 
Spain  V.  Hamilton's  Adm'r 
Spalding  v.  Conzleman 
V.  Ewing 

V.  Macomb  &  W.  I.  Ry. 
Co. 
Spangler  v.  Danforth 
Sparhawk    v.    Union    Passenger 

Ry.  Co.  58,  638 

Sparks  v.  Childers  482 

V.  Liverpool  Waterworks  287 

V.  Taylor  416 

Spaulding  v.  Harvey  498 

V.  Preston  346 

V.  Steel  387 


388,  729,  730 
251 
271 
562 
358 

624 
536 


P   CASES. 

exxxvii 

re  to  the  pages.] 

Spear  v.  Spear 

220, 

384 

Spears  v.  Willis 

542 

Speck  V.  Pullman  Palace  Car  Co. 

61 

Speed's  Ex'r  v.  Nelson's 

Ex'r 

741 

Speer  v.  Crawter 

707 

V.  Evans 

426 

V.  Speer 

696 

Speidel  v.  Henrici 

61 

Speight  V.  Gaunt 

225 

Spencer's  Appeal 

372 

Spencer  v.  Carr 

440 

(Earl)  V.  Peek 

775 

V.  Sandusky 

568 

V.  Spencer 

542 

V.  The  School  District 

604 

Spering's  Appeal 

243,  373, 

596 

Sperry's  Estate 

741 

Spicer  v.  Martin 

664 

Spiegler  v.  City  of  Chicago 

595 

Spieker  v.  Lash 

658 

Spies  V.  Railroad  Co. 

288 

Spink  V.  Francis 

592 

Spinney  v.  Downing 

448 

Spires  v.  Urbahn 

552 

Spirett  V.  Willows 

383 

389 

Spitler  V.  Kaeding 

144 

Spivey  v.  Harrell 

111 

Spooner  v.  Lovejoy 

126 

129 

Sporle  V.  Whayman 

524 

Sporrer  v.  Eifler 

67 

345 

Sprague  v.  Jessup 

552 

562 

Spread  v.  Morgan 

459 

460 

Sprigg  V.  Com.  Tit.,  etc 

,Co. 

54 

Springer's  Estate 

223 

Springer  r.  Arundel 

179 

V.  Puttkamer 

732 

Springfield,  etc.,  R.  Co. 

V.  Stew- 

ard 

521 

Spring's  Estate 

92 

Springs  v.  Sanders 

535 

Sprinkle  v.  Wellborn 

358 

Sproal  V.  T-arson 

495 

Spurgeon  v.  Collier 

239 

Spurlock  V.  Brown 

295 

297 

Squire's  Appeal 

154 

338 

Squires  i\  Kimball 

421 

Staats  ('.  Bergen 

155 

159 

Stack  V.  Nolte 

323 

Stackpole  v.  Beaumont 

348 

350 

CXXXVlll 


TABLK    OF   CASES. 


[The  references  are  to  the  pages.] 


Stackpole  v.  Hancock 

329 

Stafford  v.  Van  Rensse 

laer 

518,  522 

Stagg  V.  Insurance  Co. 

440 

V.  Jackson 

466 

467,  741 

Staggers  v.  Matthews 

179 

Staight  V.  Bum 

636 

Staines  v.  Burton 

199,  212 

y.  Shore 

324 

Stake  V.  Mobley 

463,  474 

Stanibaugh's  Estate 

92,  101 

Stamford  v.  Stamford 

Horse  R. 

R.  Co. 

626 

Standard   Oil  Co.  of 

Kentucky 

V.  Hawkins 

294 

Standback  v.  Thornton 

159 

Standley  v.  Roberts 

600 

St.    .Andrew's    Church 

s   Appeal 

661,  663 

Stanley's  Appeal 

219^368 

Stanley  v.  Buck 

479 

V.  Colt 

95 

V.  Leigh 

97 

V.  Luse 

375 

Stanton  v.  Allen 

353 

V.  Hall 

168 

V.  Mfg.  Co. 

446 

Stapilton  v.  Stapilton 

188, 

190,  296 

Staples  V.  Rossi  660 
Stapleton    v.    Foreign    Vineyard 

Association  649 

Star  Brewing  Co.  (The)  v.  Pri- 

mas  663 

Stark  V.  Hunton  459 

V.  McGowen  309 

Starr  v.  Ellis  680 

V.  Starr  109,  777 


State  V.  Aloe 

56 

V.  Armour  Packing  Co. 

353 

V.  Baird 

753 

V.  Branch 

444 

V.  Britten 

292 

V.  Campbell 

246 

V.  Canty 

638 

V.  Dunbar 

49 

V.  Flint  &  P.  M.  R.  Co. 

436 

V.  Foot 

731 

V.  Gerard 

196 

V.  Grifhth 

200 

V.  Grigsby 

752 

State  V.  Laies  447 

V.  Lord  613 

V.  McBride  59 

V.  McGowen  198 

V.  Ohio  Oil  Co.       625,  638,  788 
V.  O'Leary  669 

V.  Piatt  224 

V.  Portland  Nat.  Gas  Co.     354 
V.  Ragland  234 

V.  Reigart  292 

V.  Roudebush  107 

V.  Standard  Oil  Co.  355 

V.  State  Bank  147 

V.  Superior  Court   of   Mil- 
waukee 607 
V.  Warren  206 
V.  Williams                               311 
V.  Williamson                          364 
V.  Wood                            591,  605 
V.  Zachritz                 71,  626,  669 
State  Bank  i>.  Hastings                    264 
State  of  Mississippi  v.  Johnson 

58,  607 
Pennsylvania  v.  Wheel- 
ing Bridge  Co.       576,  626 
State  Railroad  Tax  Cases  605 

State  Savings  Bank  v.  Montgom- 
ery 419,  448 
Statham  v.  Hall  600 
Staube  v.  Tscliarner  26;i 
St.  Clair  School  Board's  Appeal  606 
St.    Colombe's    Heirs    (Dubourg 

De)  r.  United  States  687 

Stead  V.  Mellor  125,  128 

Steamboat  Belfast  v.  Boon  327 

Stearns  v.  Hall  564 

V.  Hubbard  561 

V.  Marsh  528 

Stebbens  v.  Perry  776 

Steed  V.  Preece  471 

Steedman  v.  Weeks  695 

Steel  V.  Brown  390 

V.  Steel  166 

V.  Walter  492 

Steele's  Appeal  498 

Steele  v.  Ashenfelter  526 

r.  Worthington  339 

Steer  v.  Crowley  567 

Steere  u.  Steere  109,111 


TABLE    OP   CASES. 


CXXXIX 


[The  references  are  to  the  pages.] 


Steger  v.  Traveling  Men's  B.  &  L. 

Ass'n  277 
Steiger  v.  Hillen  706 
Stein  V.  National.  Life  Associa- 
tion 611 
Steinbeck  v.  Mining  Co.  160 
Steinhardt  v.  Baker  549 
Steinman  v.  Vicars  777 
Steinmeyer  v.  Schroeppel  299 
V.  Seibert  541,  543 
Stembridge  v.  Morgan  549 
Stenglein     v.     Saginaw     Circuit 

Judge  55 

Stelpflug  V.  Wolfe  676 

Stephen's  and  Wife's  Appeal         680 

Stephens,  Ex  parte  480 

Stephens,  In  re  469 

Stephens  v.  Baird  435 

V.  Beal  732 

V.  Black  157 

V.  Cady  644 

V.  Green  271 

V.  Ozboume  340 

V.  Parvin  732 

V.  Stephens  452,  458 

V.  Texas  Ry.  Co.  605 

Stephenson  v.  Davis  538 

V.  Wilson  302 

Stepp  V.  Frampton  360 

Sterling's  Appeal  620,  668 

Sterling  v.  Littlefield  635 

Sternberg  v.  O'Brien  *       665 

Stemberger  v.  Slussmann  502 

Sterne  v.  Beck  286 

Sterry  v.  Arden  385,  393 

Stett  V.  Lumber  Co.  244 

Stevens  v.  Beekman  619,  621 

V.  Castel  422 

V.  C.  N.  Bank  604 

V.  Cooper  244,  488,  503 

V.  Dennett  436,  437 

V.  Moore  324 

V.  Morse  425 

V.  Mulligan  609 

V.  Reynolds  157 

V.  Rutland  &  Burlington 

R.  Co.  668 

V.  Shippen  197 

V.  Smith  432 


Stevens  v.  Yeatman  715 

Stevenson  v.  Boyd  60,  61 

V.  Taverness  487 

Steward  v.  Blakeway  717,  719 

V.  Winters  661 

Stewart's  Appeal  620,  681 

Stewart's  Estate,  In  re  209 

Stewart  i'.  Barrow  234 

V.  Gordon  301,  675,  676 

V.  Harris  373 

V.  Hook       .  610 

V.  Ives  518 

V.  Kirkland  259 

V.  Metcalf  548 

V.  Railroad  Company       584 
V.  Scott  238 

V.  Snow  586 

V.  Stewart  53,  180 

St.  Felix  V.  Rankin  698 

St.  George  v.  Wake  395,  396 

St.  Helen's  Smelting  Co.  v.  Tip- 
ping 631 
Stickney  v.  Borman                 187,  389 
Stikeman  v.  Dawson  450 
Stiles  V.  Brock  678 
Still  V.  Mayor.,  etc..  City  of  Grif- 
fin 518 
!'.  Spear  101 
Stillman  v.  Stillman                          488 
Stillwater  Water  Co.  v.  Farmer       638 
Stimson  v.  Farnham                          447 
Stiner  v.  Stiner                                  359 
Stines  v.  Hays                                    300 
Stirling  v.  Forrester                 481,  488 
Silk  Manuf.  Co.  v.  Ster- 
ling Silk  Co.          652,  656 
Stivers  v.  Tucker 
St.  James  v.  Bagley 
St.    James    Orphan 

Shelby 
St.  John  V.  Benedict 
St.  Louis  V.  O'Neil  Lumber  Co. 
(City  of)  V.  Knapp 
Ry.  Co.  V.  Phillips 
S.  &  R.  Co.  V.  Green 
St.  Mary's  Gas  Co.  v.  Elk  Co. 
Stockbridge  Iron  Co.  v.  Hudson 

Iron  Co.  298,  674,  676 

Stockdale  v.  The  South  Sea  Co.     411 


449 
127 
Asylum    v. 

195,  209 
544 
732 
625 
340 
442 
604 


cxl 


TABLE    OF   CASES. 


[The  references  axe  to  the  pages.] 


Stockdale  v.  Ullery  582,  609 
Stockett  V.  Ryan  119 
Stockley  v.  Stockley  303 
Stocks  ('.  Cannon  743 
Stockton  V.  Union  Oil  Co.  566 
Stockwell  V.  Fitzgerald  595 
V.  Stockwell  391 
Stoddard  v.  Hart  525 
Stoddart  r.  Smith  566 
Stokes's  Estate  459 
Stokes  V.  McKibben  99 
Stokoe  V.  Cowan  388 
StoU  V.  Nagle  307 
Stolze  V.  Milwaukee  &  Lake  Win- 
nebago R.  Co.  624 
Stone  V.  Chisolm  734 
V.  Denny  330 
V.  Grasselli  Chem.  Co.  610 
V.  Hackett  115 
V.  King  115 
V.  Lidderdale  264 
V.  Manning  337,  731 
Stonehewer  v.  Thompson  236 
Stonehouse  v.  Stanshaw  13 
Stonesifer  v.  Kilburn  421 
Stong's  Appeal  228 
Stong's  Estate  228 
Stony  Creek  Lumber  Co.  v.  Fields  283 
Storer  v.  Great  Western  Railway 

Co.  542,  575 

Storm  V.  Mann  659 

Storms  V.  Storms  491 

Storrs  V.  Barker  292,  442 

V.  Scougale  359 

Agr.  School  V.  Whitney       213 

Story's  Ex'rs  v.  Holcombe  646 

Story  V.  Norwich  Rd.  544 

V.  Windsor  416 

Stouffer  V.  Coleman  519 

Stourton  ;;.  Stourton  754 

Stout  V.  Allison  449 

V.  Vance  484 

Stovall  V.  McCutchen  663 

Stover  V.  Bounds  240 

Stow  V.  Bozeman  321 

V.  Russell  569 

Stowe  V.  Thomas  646 

St.  Patrick's  Alliance  v.  Byrne       658 

St.  Paul  (City  of)  v.  Seymour         150 


St.    Paul    &   Duluth   R.   Co.   v. 

U.  S.  263 

St.  Paul  Division  v.  Brown  543 

St.  Paul,  Minn.  &  M-  Ry.  Co.  v. 

Eckel  61 

St.  Paul,  etc..  Trust  Co.  v.  Leek  481 
St.  Paul's  Ch.  V.  Att.-Gen.  152,  213 
St.  Paul's  Ref.  Ch.  v.  Hower  436,  439 
St.  Paul's  Trust  Co.  v.  Kittson  222 
St.  Peter's  Church  v.  Brown  199, 

208,  216 
Strang  v.  Allen  248 

V.  Richmond,  etc.,  R.  R. 

Co.  551 

Strange  v.  Bell  597 

Stratheden  and  Campbell,  In  re 

Lord  200 

Strathmore  v.  Bowes  396 

Stratton  v.  Best  458 

V.  Dialogue  135 

Straughan  v.  Wright  695 

Strause  v.  Berger  540 

Strayer  v.  Dickerson  545 

Streatfield  v.  Stt-eatfield  452,  456,  460 
Streeper  v.  Williams  284 

St.  Regis  Paper  Co.  v.  S.  C.  Lum- 
ber Co.  540 
Streicher  v.  Murray                          403 
Strickland  v.  Graybill                      321 
Strobel  v.  Kerr  Salt  Co.           581,  595 
St.  Romes  v.  Cotton  Press  Co.         541 
Strong  V.  Blanchard                         247 
V.  Converse                   703,  704 
V.  Mitchell                             481 
V.  Nat.  Mech.  Bank  Ass'n  528 
V.  Williams                            744 
Stroup  V.  Stroup                              397 
Struther  v.  Belsey  54 
Stuart's  Heirs  v.  Coaltei:                 708 
Stuart  V.  Easton                                200 
V.  Hayden                              403 
V.  Kissam                       167,  168 
V.  Pennis                                542 
V.  Sears                                 300 
V.  Stewart  Co.                      655 
V.  Welch                                 599 
Stubbs  r.  Sargon                      112,  184 
Stubinger  v.  Frey                             370 
Stucley  ('.  Kekewich                         520 


TABLE    OF   CASES. 


cxli 


[The  references  are  to  the  pages.] 


Studer  v.  Seyer 

545 

Svanburg  v.  Fosseen               560 

,563 

Stump  V.  Findlay 

460 

Swaine  v.  Ferine             701,  703 

705 

?'.  Gaby 

312 

Swan's  Estate,  In  re 

484 

Sturgeon  v.  Stevens 

117 

Swan  V.  Frick 

116 

Sturges  V.  Knapp 

668 

V.  Patterson 

494 

Sturgis  ?•.  Champneys 

184 

V.  Swan 

698 

Sturm  V.  Boker 

446 

V.  Talbot 

361 

Sturt  r.  Mellish 

282 

Swan  Oil  Co.  v.  Linder 

545 

Stuyvesant  v.  Hall 

425 

Swarthout  v.  Swarthout 

131 

V.  The  Mayor 

542 

Swasey  v.  Amer.  Bible  Society 

197 

Styles  r.  Guy 

227 

Swatts  V.  Bowen 

252 

Sudbury  v.  Merchantville  B.  & 

L.  Ass'n  503 

Suddath  v.  Gallagher  494 

Sugar  r.  Froehlich  545 

Sugden  v.  Crossland  223 

Sullivan  v.  Jones  Steel  Co.  631 

V.  Latimer  228 

V.  Moorhead  674 

V.  Portland  R.  Co.  317,  404, 

405 

V.  Sullivan  111,  1.39 

V.  Tuck  541 

V.  Woods  242 

Summerlin  v.  Cowles  681 

Summers  v.  Bean  541 

V.  Griffiths  340 

V.  Moore  135 

Sumner  v.  Powell  678 

V.  Rhodes  425 

V.  Seaton  440 

V.  Waugh  413 

Sumwalt  V.  Tucker  234 

Sunday-school  Union  v.  Phila.  198 

Sun  Dance  Mining  Co.  v.  Frost  157 

Susquehanna  Mut.  Fire  Ins.  Co. 

?'.  Swank  302 

Sutcliff  V.  Isaacs  636 

Sutherland  v.  Parkins  551 

V.  Taintor  562 

Sutter  V.  The  Dutch  Church  667 

Sutton  V.  Con.  Apex  Min.  Co.  439 

V.  Davis  535 

V.  Miller  548 

V.  Wilders  226 

Suydam  v.  Moore  324 

V.  The  N.  W.  Ins.  Co.  731 

)'.  Voorhees  497 

S.  V.  Railroad  Co.  ;;.  Dunlop  551 


Swayne  v.  Lyon  555 

Swearingen  v.  Ins.  Co.  70 

V.  Steers  51 

Sweeney  v.  Horn  463,  464 

V.  Sampson  198 

V.  Williams  57 

Sweeny  v.  O'Hara  561 
Sweet  V.  Parker               242,  244,  677 

Sweetapple  v.  Bindon  97,  468 

Sweeting  v.  Sweeting  99 

Sweetzer's  Appeal  243,  244 

Swentzel  v.  Penn  Bank  373 

Sweringen  v.  Barnsdall  688 

Swetland  v.  Swetland  244 

Swick  V.  Rease  778 
Swift's   Ex'rs  v.  The   Beneficial 

Society  192 

Swift  V.  Arents  382 

V.  Beneficial  Society      195,  200 

V.  Castle  174 

V.  Winterbotham  324 

Swift  &  Co.  V.  U.  S.  356 

Swigert  v.  Tilden  352 

Swinburne  v.  Swinburne  141 

Swinfen  v.  Swinfen  219 

Swinney  v.  Beard  605 

Swisshelm's  Appeal  157 

Switzer  v.  Switzer  190 

Swoyer's  Appeal  220 

Sykes  ?'.  Beadon  66 

V.  Betts  522 

Symons  v.  Reid  588 

Synnot  v.  Simpson  120 

T. 

Tabor  v.  Hoffman  610 
V.  Mich.  Mut.  Life  Ins.  Co.  311 


cxlii 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Taft  V.  Bowker 
V.  Dimond 
Tailby  ;;.  Official  Rec. 
Taite's  Case 
Talbert  v.  Singleton 


266 
109 
258,  260,  262 
404 
427 


Talbot  V.  Earl  of  Shrewsbury        754 

V.  Pierce  720 

Taliaferro  v.  Taliaferro  137 

Talley  v.  Courtney  298 

V.  Curtain  732 

V.  Robinson  547 

Tallinger  v.  Mandeville  190 

Tally  V.  Smith  340 

Talmage  v.  Burlingame  494 

Tanner's  Estate  159 

Tanner  v.  European  Bank  597 

Tanney  v.  Tanney  157 

Tannyhill  v.  Pepperel  244 

Tantum  v.  Green  729 

Tappan  v.  De  Blois  194 

V.  Evans  731,  732 

V.  Gray  55 

Tarabino  v.  Nicoli  713 

Tarn  v.  Turner  236 

Tarpley  v.  Poage's  Admr.  135 

Tarr  v.  Williams  174 

Tarver  v.  Tarver  312 

Tarwater  v.  Going  777 

Tassell  i'.  Smith  249 

Tate  V.  Pen.,  etc.,  Co.  549 

V.  Security  Trust  Co.  274 

V.  Tate  703 

V.  Williamson  365 

Tateum  v.  Ross  690 

Tatger.Tatge  110 

Taunton  v.  Morris  185 

Tax  Title  Co.  v.  Denoon  778 

Tayleur,  In  re  776 

Tayloe  v.  Insurance  Co.  52 

V.  Johnson  463 

V.  Merchant's  Ins.  Co.        542 

Taylor's  Estate  267,  346 

Taylor  et  al.,  In  re  521 

Taylor  v.  Adams  405 

V.  Atwood  340 

V.  Barker  157,  176 

V.  Benham  100,  226,  463 

V.  Blanchard  353 

V.  Bowker  730 


Taylor  v.  Bryn  Mawr  College  197 

V.  Calvert  159 

V.  Carroll  427 

V.  Cornelius  250 

V.  Duesterberg  388 

V.  Ely  440 

V.  Fields  725 

V.  George  128 

V.  Gitt  273,  274 

V.  Guest  335 

V.  Harwell  101 

V.  Haskell  465 

V.  .Tames  144,  546 

V.  Johnston  366 

V.  Jones  383,  730 

V.  London  &  County  Bk. 

Co.  417 

V.  Longworth  569 

V.  Louisville  &  N.  R.  Co.     605 

V.  Meads  169,  170,  180 

V.  Mitchell  373 

V.  Neate  716 

V.  Patrick  '  296 

V.  Pearce  620 

V.  Plumer  147 

V.  Pugh  395,  396 

V.  Roberts  227 

V.  Russell        63,  248,  275,  412 

V.  Slater  60 

V.  Staples  113 

V.  Stibbert  420 

V.  Taylor      144, 145,  363,  369, 

397,  467,  472,  732 

V.  Times  Newspaper  Co.     284 

V.  U.  S.  Bldg.  Ass'n  428 

V.  Van  Deusen  482 

V.  Waters  592 

V.  Wheeler  305 

Taylour  v.  Rochfort  344 

Taymon  i-.  Mitchell  330 

Tazewell  v.  Smith  463,  466,  467 

Teal  V.  Walker  247 

Tebbetts  v.  People  669 

Tedens  v.  Clark  244 

Tedescki  v.  Berger  637 

Tedford  v.  Wilson  261 

Tee  V.  Ferris  112 

Teel  V.  Hilton  147 

Teft  V.  Booth  586 


TABLE    OF   CASES. 


cxliii 


[The  references  are  to  the  pages.] 


Tegarden  v.  Big  Star  Zinc  Co. 

377 

The  People  v.  Sup.  Ct.  of  N.  Y. 

286 

Telegraphone   Corp.   v. 

Telegra- 

V.  Tioga 

264 

phone  Co. 

539 

568 

Thetford  School  Case 

211 

Tel.  Co.  V.  Davenport 

541 

Third  A 

V.  R.  Co.  V.  New  York 

597 

Telford  v.  Barney 

225 

Third  Nat.  Bank  v.  Lanahan 

505 

r.  Brinkerhoff 

587 

V.  Skillings  Lumber  Co. 

599 

Teller  v.  Hill 

93 

of  St.  Paul  V.  Stillw. 

Temperton  v.  Russell 

662 

Gas  Co.              146 

147 

Tempest,  In  re 

215 

Thistle  Mills  Co.  v.  Bone 

548 

Temple  v.  Ferguson 

93 

Thomas 

's  ,\dmr.  V.  Lewis 

122 

Templeton  v.  Brown 

108 

Thomas's  Appeal 

249 

Tenant  v.  Elliot 

391 

Thomas 

,  In  re 

467 

Tench  v.  Cheese 

513 

Thomas 

r.  Auditor  General 

595 

Tenham  i'.  Herbert 

594 

595 

V.  Bartow 

403 

Tennant  r.  Dunlop 

374 

V.  Boyd 

586 

V.  Stoney 

120 

168 

V.  Brown 

190 

V.  Trenchard 

161 

V.  Coffin 

67 

Tennessee    Coal,     etc., 

Co.     V. 

V.  Cronise 

346 

Wheeler 

245 

V.  Dering 

566 

Tennison  v.  Tennison 

188 

V.  Ellmaker 

200 

Terry  v.  Fontaine 

317 

V.  Evans 

68 

V.  Hopkins 

394 

396 

V.  Folwell 

173 

Teske  v.  Dittberner 

542 

561 

V.  Grand  Gulf  Bank 

425 

Tetley  v.  McElmurry 

288 

V.  Hearn 

488 

Texas  v.  Hardenberg 

74 

V.  Hukill 

73 

Tex.  &  Pac.  R.  R.  Co.  v. 

Gay 

784 

V.  James 

608 

V.  Marshall 

551 

V.  Merry 

107 

Rwy.  V.  Inter-Trans. 

V.  Nauthala  Co. 

622 

Co. 

635 

V.  N.  Y.  &  Greenwood 

Texas  Standard  Oil  Co. 

V.  Adoue 

355 

Lake  Ry.  Co. 

267 

Textor  v.  Shipley 

777 

V.  Oakley 

684 

Thackwray  &  Young's  Contract, 

V.  PuUis 

436 

In  re 

535 

556 

V.  Roberts 

752 

Thalheimer  v.  Lockert 

421 

V.  Sheppard 

359 

Thallheimer  r.  Brinckeroff 

255 

V.  Standiford 

145 

Thames  Iron  Works  Cc 

).  V.  The 

V.  Thomas 

276 

Patent  Derrick  Co. 

527 

V.  Wade 

625 

Thatcher  v.  Omans 

94 

V.  Walker 

135 

Thayer  v.  Bacon 

444 

V.  Western  Car  Co. 

509 

V.  Dewey 

221 

V.  West  Jersey  R.  Co. 

667 

V.  Humphrey 

720 

V.  Williams 

395 

V.  Knote 

301 

329 

V.  Wood 

463 

Thebaut  v.  Canova 

635 

V.  Wyse 

11 

The  Distilled  Spirits  Case 

419 

Thomas 

Reed    v.   The   Prior  of 

Thellusson  v.  Woodford 

212 

Launceston 

12 

The  King  and  Holland 

84 

Thomas 

Turton  &  Sons  v.  John 

The  Queen  v.  Shropshire  Union, 

Turton  &  Sons 

656 

etc.,  Co. 

275 

Thompson's  Appeal         148,  597 

,608 

The  People  v.  Elmore 

270 

271 

Thomps 

on,  In  re 

222 

cxliv 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Thompson  v.  Adams 

158 

Thornton  v.  Stewart 

281 

V.  Allen 

187 

Thorp  V.  McCullum 

305 

V.  Allen  County 

57,  784 

Thorpe  r.  Jackson 

678 

V.  Blair 

316 

V.  Macauley 

763 

V.  Bowman 

719 

Throckmorton  v.  Throckmorton  292 

V.  Brown 

229,  736 

Throop  V.  Hatch 

108 

V.  Carpenter 

556 

Throop    Grain    Cleaner    Co 

.       V. 

V.  Cochran 

704 

Smith 

268 

V.  Derham 

603 

Thruston  v.  Minke 

696 

V.  Dulles 

555 

Thum  )'.  Wolstenholme 

140, 148 

17.  Eastwood 

294 

Thurmond  v.  Reese 

729 

V.  Emery 

266 

Thurston,  In  re 

119 

V.  Finch 

227 

Thweatt  v.  McCullough 

442 

t;.  Fisher 

691 

Tibbals  v.  Sargent 

780 

V.  Hardy 

323 

Tibbitts  V.  Tibbitts 

128, 459 

V.  Hudson 

284,  285 

Tickel  V.  Short 

691 

V.  Insur.  Co. 

298,  674 

Ticonic  Bank  v.  Harvey 

732 

I'.  Jameson 

565 

Tidd  V.  Lister 

184 

V.  Lee 

330 

Tierman  Exr.  v.  Security  B.  & 

V.  Lynch 

778 

L.  Ass'n 

147 

V.  Murray 

489,  502 

Tiernan  v.  Beam 

519 

V.  Railroad  Co. 

22 

V.  Jackson 

269 

V.  Sanders        93 

,  485,  486 

i\  Roland   536,  556, 

557,  568 

V.  Sheplar 

28 

Tiernay  v.  McGarity 

265 

V.  Simpson 

267,  450 

Tierney  v.  Wood 

106,  117 

V.  Speirs 

266 

Tiffany  t.  Anderson 

446 

V.  Tappen 

7.36 

Tilden  v.  Green  153,  207,  209, 

210, 212 

V.  Thompson 

389,  513 

Tilden  Will  Case 

210 

i;.  Tod 

565 

Tilford  V.  Burnham 

732 

V.  Van  Buren 

586 

Tillar  v.  Henry 

142 

V.  Webster 

386 

Tillery  v.  Land 

545 

V.  Whipple 

287 

Tilley  v.  Thomas 

567 

Thomson's  Ex'rs  v.  Norris 

207, 209 

Tillinghast  v.  Champlin 

717 

Lessee  v.  White 

337,  401 

V.  Coggeshall 

95 

Thomson  v.  Dougherty 

387 

Tillmes  v.  Marsh 

54,  708 

V.  Eastwood 

286,  317 

Tillotson  V.  Mitchell 

421 

V.  Shakespeare 

208 

Tilton  V.  Davidson 

89 

V.  Smith 

51 

V.  Hunter 

426 

V.  Thompson 

391 

V.  Nelson 

448 

Thorington  v.  Smith 

547 

I'.  Tilton 

559 

Thorn  r.  Cann 

252 

Timberlake  v.  Parish 

458 

Thornbrough  v.  Baker    237, 

238,  240, 

Timms  v.  Shannon 

234 

242, 243 

Timon  v.  Whitehead 

437 

Thorndike  v.  Hunt 

63 

Tindall  v.  Harkinson 

334 

Thome  v.  Halsey 

786 

Tingle  i-.  Fisher 

266 

V.  Towanda  Towing  Co.     689 

Tinkler  v.  Met.  Board  of  Works  624 

Thornton  v.  Hawley 

466 

Tinsley  v.  Anderson 

493 

V.  Knox 

521 

V.  Lacy 

646 

V.  Krimbel 

300 

V.  Rice 

427 

TABLE    OF    CASES. 


cxlv 


[The  references  are  to  the  pages.] 


Tipping  V.  Eckersley 

661 

Tourville  v.  Naish 

415 

V.  St.  Helen's  Smelt.  Co. 

637, 

Towar  i'.  Hale 

111 

638 

639 

Towle  V.  Leavitt 

324 

Tippins  V.  Phillips 

552 

V.  Mack 

224 

Titcomb  v.  Morrill 

154 

Towler  v.  Towler 

133 

Tobey  v.  Bristol 

544 

Town  V.  Needham 

698 

V.  McAllister 

519 

521 

Town  of  Bristol  v.  Bristol  &  War- 

Tobias v.  Jos.  Morris  &  Co 

.     439 

447 

ren  Water  Works 

553 

Tobin  V.  Larkin 

566 

of  Clinton     v.    Town     of 

Tod  V.  Baylor 

702 

Westbrook 

234 

Todd's  Appeal 

165 

166 

of  Weston  ?'.  Ralston    597 

680 

Todd  V.  Campbell 

243 

Towne  v.  Sparks 

443 

V.  Gee 

683 

Townley  v.  Bedwell 

475 

V.  Grove 

363 

V.  Sherborne 

226 

V.  Lee 

175 

733 

Towns  V.  Smith 

51 

V.  Nelson 

387 

Townsend  v.  Epstein 

636 

V.  Tnft 

539 

r.  Fenton 

563 

Tod-Heatley  v.  Benham 

661 

V.  Houston 

563 

Toker  v.  Toker 

119 

V.  Vanderwerker 

566 

Toland  v.  Corey 

295 

V.  Westacott 

386 

Toledo,    Ann    Arbor    & 

North 

Townshend  v.  Goodfellow 

555 

Mich.  Ry.  Co.  v.  Penna.  Co. 

V.  Stangroom 

558 

et  al. 

576 

577 

V.  Windham         257 

272 

Toledo  R.  R.  Co.  v.  St. 

Louis 

Township  of  Boomer  v.  French 

317 

R.  R.  Co. 

288 

of   Canosia    v.    Grand 

Toilet  V.  Toilet 

304 

305 

Lake 

484 

Tolley  V.  Poteet 

452 

of    Centre    v.    Marion 

Tolson  V.  Tolson 

130 

County 

586 

Tomb's  Appeal 

390 

Towry  Law  r.  Bume 

lis 

Tomlinson  v.  Bury 

482 

Tozier  r.  Brown 

62 

V.  Harrison 

786 

Tracey  r.  Sacket 

359 

V.  Ward 

780 

Tracy  r.  Keith 

176 

Tompkins  ;).  Drennen 

586 

Trade-Mark  Cases 

651 

V.  Merriman 

454 

Trammel  r.  .\shworth 

334 

Tomson  v.  Judge 

363 

Traphagen  v.  Kirk 

547 

Toney  v.  Wondling 

146 

Trask  v.  Green 

729 

Tongue  v.  Morton 

428 

Trask  Fish  Co.  r.  Wooster      653 

654 

r.  Nutwell 

68 

Travellers'  Ins.  Co.  v.  Henderson 

300 

Tooth  V.  Hallett 

273 

Treadwell  v.  Brown 

720 

Topham  v.  Duke  of  Portland 

399 

V.  Torbert 

64 

Topp  )•.  Williams 

708 

Treasurer  v.  Commercial  Co. 

539 

Toppin  V.  Moriarty 

670 

Treat's  Appeal 

208 

Topping  V.  Jeanette 

674 

Treftz  V.  King 

24 

Torbert  v.  Twining 

168 

Tremain's  Case 

753 

Torr's  Estate 

741 

Tremont  Nail  Co.,  Ex  parte 

267 

Torrey  v.  Cameron 

138 

Trench  r.  Hamilton 

125 

Totten,  Matter  of 

114 

Trenery  v.  Goudie 

.346 

Totten  V.  United  States 

769 

Trenton  BankingCo.  /•.  Duncan 

437 

Tourney  v.  Sinclair 

190 

V.  Woodruf? 

166 

•xlvi 


TABLE    OF    CASES. 


[The  references  are  to  the  pages.] 


Trenton,  etc.,  v.  KcKel 

way 

588 

Tuck  ( 

•.  Downing 

323 

Trenton  Potteries  Co.  v. 

Oliphant  352 

Tuckei 

•'s  .\ppeal 

92,94 

Trexier  v.  Kuntz 

27,  270 

Tuckei 

•  V.  Andrews 

182,  394 

V.  Miller 

313 

V.  Bennett 

119 

Tribette  v.  Railroad  Co. 

595 

V.  Burrow 

145 

Tribou  r.  Tribou 

374 

V.  Kenniston 

681, 777 

Trice  v.  Comstock 

155 

V.  Oxley 

723 

Trigg  V.  Jones's  Admr. 

68 

V.  Shaw 

424 

V.  Read 

292,  296 

V.  Thurstan 

85 

Trimm  v.  Marsh 

234,  238 

V.  Wilson 

526,  528 

Trinidad  Asphalt  Co.  v. 

Ambard  639 

Tuckley  v.  Thompson 

525 

Trinidad  (City  of)  v.  Milwaukee 

Tufts  V.  Latshaw 

148 

and  Trinidad  Sm.  &  Ref.  Co.       418 

Tuggle 

V.  Minor 

691 

Trinity  M.  E.  Church  v. 

Baker 

Tukey 

V.  City  of  Omaha 

606 

194,  206 

Tulk  V 

.  Moxhay 

410,  663 

Triplett  v.  Parmalee 

617 

Tullett 

V.  Armstrong 

177,  178 

V.  Woodward 

374 

Tully  ; 

.  Harloe 

250 

Tripp  V.  Hasceig 

307 

Tunesma  v.  Shuttler 

734 

Trippe  v.  Lowe 

729 

Tunnard  v.  Littell 

140, 142 

Trist  V.  Child 

267 

Tunno 

V.  Trezevant 

720 

Tritt  V.  Colwell 

167 

Tunstall  v.  Boothby 

264 

V.  Crotzer 

95, 

106,  112 

Tapper 

•  V.  Dart 

56 

Trotter  v.  Smith 

371 

Turcan 

,  In  re 

257 

V.  Trotter 

186,  187 

TurnbuU  v.  Gadsden 

330 

V.  Watson 

383 

Turner 

's  Settled  Estates,  In  re       400 

Trough's  Estate 

113, 115 

Turner 

V.  Abbott 

351 

Troup  V.  Haight 

692 

1'.  Adams 

729,  732 

Troutman  v.  DeBoissiere 

192,  195 

V.  Burrows 

488 

Troxell  v.  Lehigh  Crane  Iron  Co.  447 

V.  City  of  Mobile 

594 

V.  Silverthorn 

371 

V.  Collins 

363 

Troy  &  Boston  R.  Co.  v 

Boston, 

V.  Green 

548 

etc.,  R.  Co. 

019 

V.  Harvey 

328 

Troy  City  Bank  v.  Wilcox 

415 

V.  Haupt 

428 

Truebody  v.  Jacobson 

519 

V.  Kerr 

243 

Truesdail  v.  Ward 

442 

V.  Letts 

518,  525 

Truesdell  v.  Lehman 

60 

i\  Major 

712 

Trull  V.  Eastman 

341 

V.  Merchant's  Bank 

345 

V.  Skinner 

240 

V.  Morgan 

697 

Trust  V.  Delaplaine 

325 

V.  Morris 

702 

Trust  Co.  V.  Company 

251 

V.  Overall 

362 

V.  Loan  Co. 

734 

V.  Petigrew 

147 

Trustees  v.  Bryson 

389 

V.  Sawyer 

157 

V.  Chambers 

208 

V.  Scott 

117 

V.  Hoessli 

622 

V.  Shaw 

676 

V.  School  Directors  607,  613 

V.  Spooner 

577 

of    Baptist    (Jhurch   v. 

V.  Turner 

364,  366 

Hart's  Ex 

rs 

193 

Turnipseed  v.  Sirrine 

563 

of  Schools  V.  Sheik 

417 

Turton 

V.  Benson 

273 

Tryon  v.  Munson 

235 

V.  Turton 

167,  656 

TAB 

LE    OF   CASES.                                         C: 

dvil 

[The  references  are  to  the  pages.] 

Tuscaloosa  Ice  Mfg.  Co.  v. 

Wil- 

Union  Nat.  Bank  v.  Goetz 

147 

liams 

353 

Union  Pac.  Rwy.  Co.  v.  Artist 

201 

Tuttle  V.  Blow 

780 

V.  Chey- 

V. Jackson 

427 

enne 

606 

Tutwiler  v.  Dugger 

713 

V.  Chicago, 

Tweddell  v.  Tweddell 

342 

Rock  Isl 

Twin  Lick  Oil  Co.  v.  Marbury 

160 

&     Pac. 

Twohy  Mercantile  Co.  v.  Melbye 

150 

Rwy.  Co 

, 

Two  Rivers  Mfg.  Co.  v.  Day 

438, 

440, 

532 

554 

442 

V.  Harris 

361 

Twort  V.  Twort 

617 

Union  Railroad  Co.  v.  Dull 

681 

Twyne'sCase   381,383,393 

,526 

,  527 

Union  Stock  Yards  Bank  v.  Gil- 

Tygert-AUen Fert.  Co.  v.  Tygert 

lespie 

149 

Co. 

440 

Union  Strawboard  Co.  v.   Bon- 

Tyler  v.  Black 

320 

,321 

field 

343 

V.  Lake 

168 

Union  Trust  Co.  v.  111.    Midland 

V.  Peatt 

731 

Ry.  Co.    508 

509 

V.  Stett 

313 

V.  Souther 

508 

V.  Tuel 

265 

Union  Water  Co.  v.  Kean 

669 

V.  Tyler 

117 

United  Seciirity  Co.  v.  Cent.  Nat. 

V.  Yates 

343 

Bank 

419 

Tyree  v.  Williams 

557 

United  Shoe  Co.  v.  Bresnahan  Co 

440 

Tyrrel's  Case 

86,94 

V.  Kimball 

353 

Tyrrell  v.  Bank  of  London 

370, 

374, 

United  States  v.  Addyston  Pipe 

378 

&  Steel  Co. 

352 

Tyson  v.  School  Directors 

309 

V.  Amer.  Bell  Telephone 

V.  Watts 

551 

Co. 
V.  Am.  Tobacco  Co. 

2 
356 

U. 

V.  Dalles  Military  Road 

62 

V.  Flint  &  P.  M.  Ry.  Co. 

240 

Udall  V.  Kenney 

182 

185 

V.  Freight  Association 

352 

Uhler  V.  Sample 

716 

V.  Gear 

622 

Ulbricht  v.  Eufaula  W.  Co. 

630 

V.  Hooe 

250 

UUman  v.  Cameron 

100 

V.  Joint  Traffic  Ass'n 

356 

Unangst's  Appeal 

667 

V.  Luce 

632 

Unckles  v.  Colgate 

66 

V.  Moses 

767 

Underbill  v.  Allen 

563 

V.  New  Orl.  R.  Co. 

261 

V.  Norwood 

678 

V.  Northwest  Trading  Co. 

54 

Underwood  v.  Barker 

353 

V.  Parrott 

660 

V.  Dugan 

61 

V.  Price 

678 

Ungley  v.  Ungley 

563 

V.  Trans.  Miss.  Frt.  Ass'n 

Union  Bank  v.  Baker 

136 

351, 

356 

V.  Edwards 

485 

V.  Vaughan 

270 

V.  Munster 

550 

V.  Wagner 

767 

of  London  v.  Kent 

70 

United  States  Bank  v.  Beverly 

513 

Union  Canal  Co.  r.  Young 

412 

V.  Biddlo    57,  316, 

688 

Union  Coll.  v.  Wheeler 

138 

V.  Carrington   135, 

141 

Union  Dime  Savings  Co.  v. 

Wil- 

V.  Daniel 

297 

mot 

450 

V.  Housman 

154 

CXlVlll 

TABLE    OF   CASES. 

[The  references  are  to  the  pages.] 

United  States  v.  Huth 

267 

Vandike's  Appeal 

726 

V.  Winston's 

Ex'rs 

496 

Van  Doren  v.  Robinson 

553 

United  States  Freehold  L 

&  E. 

V.  Todd 

521 

Co.  V.  Gallegos 

621 

Van  Dusen  v.  Bigelow 

365 

,374 

United  States  Life  Ins. 

Co.  V. 

V.  Parley 

402 

Cable 

58 

Van  Duyne  v.  Van  Dujtic 

127 

,452 

United  States  Mortgage 

Co.  V. 

V.  Vreeland 

773 

Sperry 

284 

Van  Dyke's  Appeal          454 

456 

,460 

United  States  (President 

of)   V. 

Vane  v.  Lord  Barnard 

618 

Drummond 

197 

V.  Vane 

316 

Unity  Association  r.  King 

450 

Van  Epps  v.  Harrison 

323 

Universal  Stock  Ex.  v.  Strachan 

346 

V.  Redfield 

536 

Universities  of  Oxford  and  Cam- 

Van Etten  v.  Bank 

141 

bridge  r.  Richardson 

643 

Van  Gelder  &  Co.  r.  Society 

233 

University  of  London  v.  Yarrow 

197 

Van  Horn  v.  Munnell 

552 

Unruh  v.  Lukens 

373 

Van  Home,  In  re 

368 

Up  River  Ice  Company  v.  Denier 

663 

Van  Home  v.  Fonda 

156 

,157 

Upshaw  r.  Upshaw 

459 

Van  Houten  v.  Morse 

329 

Upton  V.  Paxton 

690 

Vankirk  v.  Patterson 

569 

V.  Tribilcock 

327 

,379 

Van  Kirk  v.  Skillman 

175 

Urch  V.  Walke 

217 

Van  Leer  v.  Van  Leer 

91 

Urmey's  Ex'rs  v.  Wooden 

208 

Vanmeter  i\  McFaddin 

426 

525 

Urpman  v.  Oil  Co. 

548 

549 

Van  Nest  v.  Latson 

252 

U.  S.  Voting  Machine  Co.  v 

Hob- 

Van  Pelt  v.  Strickland 

498 

503 

son 

59 

Van  Praagh  r.  Everidge 

550 

Utermehle  v.  Norment 

292 

Van  Raalte  v.  Harrington 

384 

Utica  (Bank  of)  v.  Finch 

250 

Van  Rensselaer  v.  Kearney 

434 

r.  Van  Rensselaer  52 

V. 

Van  Riper  i».  Van  Riper 

744 

Vansittart  v.  Vansittart 

189 

190 

Vacuum  Oil  Co.  v.  Eagle  Oil  Co. 

72 

Van  Stan  Co.  v.  Van  Stan 

655 

Vail  V.  Reynolds 

300 

Van  Stone  r.  Coodwin 

527 

Vallette  r.  Tedens 

137 

Van  Vrankin  v.  Roberts 

592 

Valley  Iron  Works  v.  Coord lick 

542 

Van  Wagenen  v.  Carpenter 

158 

Valter  v.  Blavka 

118 

Van  Weel  v.  Winston 

373 

Van  Amee  v.  Jackson 

129 

Vanwinkle  r.  Curtis 

621 

Vanasse  i'.  Reid 

370 

Van  Winkle  r.  Johnson 

481 

Van  Bergen  v.  Van  Bergen 

575 

Van  Zandt  i'.  Garretsoi 

555 

Vanbuskirk  v.  Hartford  Ins.  Co. 

272 

Vanzant  v.  Davies 

143 

Vance's  Estate 

460 

Varick  v.  Edwards 

257, 

341 

Vance  v.  Blair 

711 

Varner's  Appeal 

166 

V.  Campbell's  Heirs 

350 

Vason  1'.  Ball 

234 

V.  Kirk 

157 

Vaughan  v.  Barclay 

71 

V.  Johnson 

235 

V.  Bridgham 

638 

Vandenberg  v.  Palmer 

116 

V.  Buck 

184 

Vandergrif  v.  Swinney 

344 

V.  Consolidated     ^ 

tin'g 

Vanderstegen  v.  Witham 

82 

Co. 

252 

Vandervort  v.  Fouse 

382 

V.  Halliday 

517 

Van  Deusen  v.  Sweet 

447 

V.  Vanderstegen 

310 

TABLE    OF   CASES. 


oxlix 


[The  references  are  to  the  pages.] 


Vaught  V.  Meador 
Vaux  V.  Parke 
Veasey  v.  Doton 
Veazie  v.  Williams 
Vegelahn  v.  Guntner 
Venable  v.  Burton 

V.  Coffman 
Venderhaise  i>.  Hugues 
Veney  v.  Gallagher 


71 

101 
334 
324 
626,  628,  637 
675 
206 
236,  240 
619 


Venezuela  Central  R.  Co.  (Direct- 
ors of)  V.  Kisch  324 
Venner  v.  Farmers'  L.  &  T.  Co.  263 
Vennum  v.  Davis  583 
Vermont  v.  C.  &  N.  W.  R.  Co.  264 
Vermont,    etc.,    Co.     v.    Declez 

Co.  733, 734 

Vemer's  Estate  222 

Vernon  v.  Vernon  125 

Verrier  v.  Guillou  440 

Very  v.  Levy  542 

Verzier  v.  Convard  561 

Viallet  V.  Ry.  Co.  373 

Viant's  Settlement  97 

Vick  V.  Percy  54 

V.  Vick  68 

Vickers  v.  Buck  384 

Vicksb.  &  M.  R.  Co.  v.  Phillips      731 
Vidal  V.  Girard's  Ex'rs    192,  193,  195, 
196,  197,  201,  207, 
210,  213,  215,  216 
Viebahn   v.    Board   of  Commis- 
sioners 625 
Viele  V.  Hoag  587 
Vierra  v.  Ropert  552 
Viers  v.  Viers  144 
Villa  V.  Rodriguez                    240,  244 
Villers  V.  Beaumont                         119 
Vincent  v.  Walker                            243 
Vint  V.  Paget                                    249 
Violet  Nevin,  In  re                          754 
Virginia  Coal  Co.  v.  Lambert          338 
Virginia  &  Alab.  Coal  Co.  v.  Cen- 
tral  R.  R.  &  Banking 

Co.  508,  510 

&  Alab.  Min.  &  Mfg.  Co. 

V.  Hale  762,  768 

Carolina  Chem.   Co.   v. 
Home  Ins.  Co.  595 

Visme,  de,  In  re  144 


Vizard  v.  Moody 

660 

Vizonneau  v.  Pegram 

175 

Vogle  )'.  Brown                          481 

489 

VoUmer's  Appeal 

636 

Von  Thodorovich  v.  Frantz  Josof 

Ass'n 

665 

Voorhees  v.  Baily 

160 

V.  De  Meyer 

555 

V.  Presbyterian  Church 

93 

Voorhis  v.  Murphy 

302 

Voshell  V.  Hynson 

780 

Voyle  V.  Hughes 

257 

Vreeland's  Estate 

215 

Vreeland  v.  Blauvelt 

556 

V.  Van  Horn 

115 

V.  Vreeland 

695 

Vulcan  V.  Myers 

656 

w. 


Wack  V.  Sorber 

562 

Wacker  v.  Wacker 

142, 

145 

Wadd  V.  Hazleton 

117 

Waddell  v.  Carlock 

519 

V.  De  Jet 

616 

Wade  V.  American  College 

Soci- 

ety 

208 

V.  Chicago  Sp.  &  St. 

L.  R. 

R.Co. 

259 

V.  Fisher 

166 

Wadhams  i).  Gay 

113 

Wadsworth  v.  Blake 

494 

Wafer  v.  Mocato 

287 

Wager  v.  Link 

497 

V.  Wagoner 

359 

Waggoner  r.  Minter 

300 

V.  Speck 

562 

Wagner  v.  Elliott 

499 

V.  Feahr 

314 

V.  Hildebrand 

346 

V.  Sanders 

61 

Wagstaff  V.  Smith 

95 

,  169 

Wahl  V.  Cemetery  Ass'n 

635 

Wainford  v.  Heyl 

172 

Wainwright  v.  Read 

566 

V.  Talcott 

560 

Waite  V.  Frank 

346 

Wake  V.  Conj'ers 

707 

708 

Wakeman  r.  Kingsland 

599 

cl 


TABLE    OF   CASES. 


[The  references  are  to  the  pages.] 


Walcott  V.  Keith 

527 

Waller  v.  Dalt 

345 

V.  Robbins 

708 

Wallgrave  v.  Tebbs 

112,  329 

Waldron,  In  re 

7.'i2 

Walling  V.  Aiken 

249 

Waldron  *;.  Simmons 

56 

Wallinger  v.  Wallinger 

457 

Wales  V.  Coffin 

67 

Wallis  IK  Everard 

700 

V.  Mellen 

238 

V.  Freeman 

716 

Walet  1'.  Haskins 

778 

V.  Truesdell 

445 

Walker's  Appeal 

200 

Wallwyn  v.  Lee               413 

, 430,  700 

Walker's  Estate 

512 

,741 

Walmesley  v.  Booth 

371 

Walker,  in  re 

497 

Walpole  V.  Orford 

552 

Walker  v.  Brown 

516 

Walrond  v.  Walrond 

189 

V.  Brungard 

137 

Walsh's  Appeal 

123 

V.  Daly 

57 

Walsh  V.  Curtis 

284 

V.  Eastern  Counties  Rail- 

V. Goulden 

373 

way 

553 

V.  McBride 

138 

V.  Edmundson 

552 

Walter  v.  Ashton 

670 

V.  Farmers'  Bank 

240 

V.  Heller 

586 

V.  Flint 

442 

V.  Selfe 

632,  637 

V.  Gillman 

556 

Walters  v.  Farmers'     Bank 

of 

V.  Hill's  Exrs. 

65 

Virginia 

52 

V.  Johnson 

234 

?;.  Morgan 

565 

V.  Kee 

536 

V.  Northern  Coal  Mining 

V.  T-aflin 

695 

Co. 

709 

V.  Maddox 

659 

Walton  Guano  Co.  v.  Copelan        302 

V.  McNelly 

638 

V.  Crowley 

651,  658 

V.  Morris 

736 

V.  Horkan 

270 

V.  Shore 

217 

Walworth  v.  Holt 

713 

V.  Simpson 

187 

Walwyn  v.  Coutts 

119,  120 

V.  Symonds 

220 

Wampol  V.  Kountz 

439 

V.  Vaughn 

261 

Wamsley  v.  Ward 

265 

V.  Walker 

208 

225 

Wanner  v.  Snyder 

101 

V.  Wheeler 

287 

Waples-Platter  Co.  v.  Low 

385 

Wall  V.  Arrington 

559 

Ward  1).  Amory 

182 

V.  Colshead 

470 

471 

;>.  Funsten 

224 

V.  Meilke 

299 

V.  Lewis 

120 

Wallace's  Appeal 

492 

497 

V.  Ohio  R.  Co. 

630 

Wallace  v.  Bowens 

145 

V.  Peloubet 

126 

V.  Coston 

173 

V.  Sweeney 

56 

V.  Craig 

173 

V.  Turner 

123 

V.  Duffield 

147, 

148 

V.  Van  Bokkelen 

316 

V.  Greenwood 

471 

V.  Ward 

139,  397 

V.  McCuUough 

147, 

148 

V.  Wood 

735 

V.  Wainwright 

76 

Warde  v.  Warde 

751,  752 

V.  Wallace 

397 

Warden  v.  Jones 

385 

Walla    Walla    v.    Walla 

Walla 

?,'.  Lyons 

166 

Water  Co. 

58 

Ware  v.  Owens 

718 

Wallen's  Appeal 

498 

V.  Richardson 

166 

Waller  v.  Armistead 

368, 

394 

r.  Shentz 

234 

V.  Catlett 

221 

Warfichl  r.  Warfield 

698 

'1 

AHl 

LIO    O 

F    TASFS. 

ell 

[The  references  are  to  the  pages.] 

Warford  v.  Hankins 

496 

Waterman  v.  Sprague  Mfg.  ( 

2o. 

60 

Waring,  Ex  parte 

517 

Waters  v.  Howard 

542 

544 

Waring  v.  Ayres 

552 

V.  Stewart 

234 

V.  Cram 

719 

V.  Stickney 

313 

Warne  v.  Morgan 

495 

('.  Tazewell 

179 

349 

Warne  &  Co.  v.  Seebohm 

646 

Watertown  r.  Cowen 

660 

Warner's  Estate 

397 

V.  Mayo 

606 

Warner  v.  Bates 

126 

128 

Wathen  v.  Smith 

744 

V.  Bennett 

288 

Watkins  v.  Bigelow 

207 

V.  City  of  New  Orleans 

69 

V.  Childs 

707 

V.  Daniels 

339 

V.  Collins 

682 

V.  Hall 

419 

V.  Gregory 

243 

V.  Hastings 

607 

V.  Specht 

104 

V.  Hopkins 

596 

V.  Watkins 

190 

V.  McMuUin 

76 

V.  Weston 

112 

V.  Moran 

729 

V.  Williams 

494 

696 

V.  Morse 

148 

V.  Worthington 

493 

V.  Price 

484 

Medical  Co.  v. 

Sane 

Is 

V.  Rice 

100 

653, 

654 

656 

Warre  (Ship),  In  re 

257 

Wathngton  v.  Howley 

428 

Warren  v.  Adams 

70 

Watney  v.  Wells 

715 

V.  Castello 

551 

Watson's  Appeal 

90 

V.  Farmer 

722 

Ex'rs  V.  McLaren 

273 

V.  First  Nat.  Bank 

265 

(Miss.)  Settlement 

177 

V.  Haley 

167 

Watson  V.  Bagaley 

269 

V.  Richmond 

421 

V.  Bartholomew 

314 

V.  Tynan 

138 

V.  Bothwell 

313 

V.  Westbrook  Mfg.  Co, 

695 

V.  Brickwood 

512 

Warren  (County  of)  v.  Marcy 

429 

V.  Brown 

334 

Warren  &  Franklin  Railway 

Co. 

V.  Coast 

548 

V.  Clarion  Land  Co. 

580 

V.  Edwards 

240 

Warrick  v.  Warrick 

97 

419 

V.  Ferrell 

619 

Warriner  v.  Rogers 

117 

271 

T.  Gardner 

252 

Warwick  Iron  Co.  v.  Morton 

286 

r.  Hunter 

615 

Washburn's  Appeal 

634 

V.  Jones 

666 

Washburn  v.  Bank    of    Bellows 

V.  Knight 

440 

Falls 

720 

V.  Roller   Skat 

ing   1 

Rink 

V.  Goodman 

719 

Co. 

64 

College  V.  O'Hara 

197 

V.  Smith 

257 

Washington,  A.  &  G.  R.  R. 

Co. 

V.  Sutherland 

57 

620 

V.  Alex.  &  W.  R.  R.  Co. 

159 

,223 

r.  Wells 

418 

Washington  University  v.  Green 

577 

Watt's  Appeal 

373 

404 

596 

Washington's  Estate 

108 

Watts  V.  Cummins 

321 

Water  Co.  v.  Cherryvale 

553 

V.  Kellar 

245 

Waterer  v.  Waterer 

717 

V.  Newberry 

150 

Waterman  v.  Alden 

228 

V.  Waddle 

73 

V.  Dutton 

299 

Watuppa    Reserv.    Co 

.      V. 

Fall 

V.  Matteson 

235 

River 

621 

V.  Morgan 

121 

Waugh  I'.  Riley 

252 

lii 


cm 


TABLK    OK    (WSES. 


[The  references  are  to  the  pages.] 


Way's  Trvists 
Waylnnd  v.  Tucker 
Wuyniau  r.  Jones 
Wayne  i\  l'"ou1.s 


118,  270 
483 
227 
47G 


Waynesburjj;  College  (Appeal  of)   115 
W.  B.  of  Scotland  r.  Ad. lie  311 
Weakley  v.  Page  637 
Weare  v.  Williams  418 
Weathersly  r.  Weathersly  243 
Weaver  v.  Akin  157 
V.  Atlantic  Roofing  Co.     266 
V.  Carpenter  315 
V.  Shryock  678 
r.  Spiirr  216 
Webb  V.  Bird  636 
V.  Bowman  281 
V.  Haucher  62 
V.  Hughes  569 
V.  Hunt  504 
V.  Jones  512 
V.  Ledsam  225 
V.  London     and     Ports- 
mouth R.  Co.  549 
V.  Parks  594 
V.  Rice  677 
V.  Rorke  240 
V.  Shaftesbury  454 
V.  Woods  125 
Press  Co.  v.  Bierce  353 
Webber  v.  Gage  632,  635 
('.  Hausler  495 
V.  Taylor  421 
Weber  v.  Marshall  571 
V.  Rothchild  384 
V.  Weatherby  439 
7).  Weitling  339 
Webster  &  Goldsmith's  Appeal     494 
Webster  v.  Clark  731 
V.  Cook  341 
V.  Folsom  729 
V.  Harwinton  604 
V.  Sughrow  192,  199 
Weckerly  v.  Taylor  729 
Wedgwood  v.  Adams  549 
Weed  V.  Case  321 
V.  Grant  583 
V.  Pierce  382,  729 
V.  Small  691 
Weeding  v.  Weeding  475 


Weekes'  Settlement,  In  re  133 

Weeks  v.  Robie  315 

V.  Sego  177 

Wehrle's  Appeal  367 

Weidemann  v.  Springfield  Co.         442 

Weigel  V.  Walsh  621 

Weil  V.  Ginnery  Co.  494 

r   Ricord  6()() 

Weinstock,  etc.,  v.  Marks  656 

Weir  V.  Bell  31S 

V.  Tannehill  120 

Weise's  Appeal  550,  563 

Weise  v.  Grove  330 

Weiss  V.  Gullet  26S 

Malting  and  Elevator  Co. 

r.  Hower  5S 

Weist  I'.  CJarman  340 

Welby  V.  Thornagh  312 

Wfelch  r.  Caldwell  208 

V.  Episcopal     Theological 

School  89 

V.  Farmers'  Trust  Co.  521 

r.  Mann  389 

V.  Welch  187 

Welland  v.  Hathaway  446 

V.  Huber  568 

Wellenvoss  v.  Grand  Lodge  669 

Weller  v.  Jersey  City  Ry.  Co.         264 

Welles  V.  Castles  89 

('.  Yates  300,  675 

Wellesley  v.  Duke  of  Beaufort 

751,  752 

V.  Mornington  399 

V.  Wellesley  262 

Wellford  v.  Chancellor  158 

Wellington  v.  Railroad  Co.  575 

Wells  r.  Beall  702,  705 

V.  Buffalo  778 

V.  McCall  165,  179 

V.  Pierce  56 

t\  Waterhouse  335 

Fargo    &   Co.'s    Exp.    v. 

Walker  329 

Welsh  V.  Bayaud  571 

V.  Usher  525 

Welton  V.  Divine  144 

Welty  V.  Jacobs  665 

Wendell  o.  Van  Rensselaer     371,  442 

Wenegar  v.  BoUenbach  340 


TABLE    OF   CASES. 


i-llll 


[The  references  are  to  the  pages.] 


Wentz's  Appeal 

463 

Werner  i\  Rawson 

302 

V.  Zierfuss 

3S3 

Wertheimer  r.  Tliomas 

421 

,423 

Wesoo's  Appeal 

744 

Wesley  Church  v.  Moore 

57 

,  4S6 

West  V.  Bank  of  Rutland 

.503 

506 

V.  Belches 

497 

V.  Bundy 

562 

V.  Howard 

188 

V.  Ry.  Co. 

562 

V.  Walker 

621 

V.  West 

167 

173 

V.  Williams 

250 

Arlington      Imp.     Co 

V. 

Mount  Hope 

637 

Westbrook  v.  Harbeson 

559 

Westbury  v.  Simmons 

274 

Westby  v.  Westby 

296 

Westcott  V.  Edmunds 

92 

West  End  Co.  v.  Claiborne 

334 

Western  v.  MacDermott         410,  580, 

663,  664 
Germ.     Savings     Bank 
V.       Farmers'       and 
Drovers'  Bank  301 

Land  Ass'n  r.  Banks     437, 

446 

Pa.  R.  Co.'s  Appeal         624 

R.  Co.  u.  Babcock     302,  549 

Union  Tel.  Co.  v.  A.  A. 

R.  R.  Co.  235 

Westervelt  v.  Half  418 

V.  National  Paper  Co.  610 

Westinghouse    r.    German    Nat. 

Bank  62, 418 

Westmeath  v.  Westmeath  188 

Westminster  (Bank  of)  c.  Whyte  677 
Westmoreland  Nat.  Gas  Co.  v.  De 

Witt  615,  622 

West  Va.  &  P.  R.  Co.  v.  Harri- 
son Co.  Court  287 
Wethered  v.  Wethered  257 
Wetmore  v.  Royal                           445 
V.  Zabriskee                     699 
Wharton  v.  Douglass                      402 
V.  May                              343 
Wheatley  v.  Slade                            566 
Wheedon  (■.  Am.  B.  and  T.  Co.       284 


Wheeler  v.  Baars  330 

V.  Campbell  446 

V.  Kidder  144 

V.  Kirtland  138,  139,  4u2 

V.  Philadelphia  606 

V.  Rice  579 

V.  Sage  64 

V.  Smith  296 

V.  Van  Wart  714 
Wheeling  Bridge  &  Terminal  Ry. 

Co.  V.  Reymann  Brewing  Co.       61 

Whelan  v.  Whelan  359,  360.  369 

Whelen's  Appeal  296 

Whelen  r.  Philhps  342 

Whetsler  v.  Sprague  109 

Whichcote  v.  Lyle's  Ex'rs  90,  94 

Whicker  r.  Hume  195,  197,  216 

Whillock  V.  Grisham  777 

Whistler  v.  Webster  457,  458 

Whiston's  Settlement  112 

Whitaker,  Matter  of  756 

Whitaker  v.  Hudson  638 

V.  Robinson  548 

Whitbread  v.  Brockhurst  565 

Whitcomb  v.  City  265 

White,  In  re  199 

White's  Trusts  132 

White  V.  Booth  633 

V.  Boyce  303 

V.  Casanave  518 

V.  C.  Nat.  Bank  300 

V.  Cohen  638 

V.  Com.  &  Farmers'  Bank  150 

V.  Dougherty  520,  720 

V.  Fisk  206 

V.  Flora  339 

V.  Fratt  52 

V.  Hall  73 

V.  Mellin  669 

V.  Nuptial  Benefit  Union     347 

V.  Patterson  62 

V.  Poole  553,  563 

V.  Rittenmyer  238 

V.  Schuyler  539 

V.  Sheldon  142 

V.  Smith  198 

V.  Stevenson  299 

V.  White  199,  488,  562 

i'.  Williams  521 


^liv 


'I'AHLI';    OK    CA.^ES. 


[The  references  are  to  the  pages.] 


Whitebread  v.  Brockhurst 

565 

V.  Smith 

678 

Whitecar's  Estate 

220 

Whitecar  r.  Michenor 

578 

Whitehead  /'.  Kitson 

670 

V.  Peck 

344 

)'.  Shattuck 

54 

Whitehorn  r.  Hines 

359 

Whitehouse,  In  re 

146 

Whitehouse's  Case 

404 

Whiteley  v.  Stewart 

175 

V.  Whiteley 

369 

Whiteman  v.  Perkins 

569 

White  Alts.  R.  R.  Co.  v. 

Bay  State 

Iron  Co. 

529 

White  River  Sav.  Bk. 

V.  Capital 

Bank 

528 

White  Star  Min.  Co.  v.  Hultberg 

538 

Whitesell  v.  Strickler 

366 

Whitesides  v.  Cannon 

175 

Whitewater,  etc.,  Co.  ?;. 

Comegys 

598 

Whitfield  v.  Hales 

752 

V.  Rogers 

625 

Whiting  V.  Barney 

766 

V.  Burke 

481 

V.  Dyer 

137 

V.  Gould 

109 

V.  Village  of  N 

ew  Balto. 

284 

V.  Whiting 

132 

Whitley  V.  Challis 

785 

V.  Ogle 

140 

144 

Whitlock  V.  R.  R.  Co. 

595 

V.  Washburn 

550 

Whitman  v.  Bowden 

377 

Whitmore  v.  Brown 

634 

V.  Shiverick 

234 

Whitney  v.  Bank 

784 

V.  Hay 

560 

V.  Holmes 

446 

V.  Smith 

223 

V.  Stevens 

54 

V.  Stone 

544 

V.  Whitney 

676 

Whittaker  i'.  Howe 

352,  666, 

712 

Whitted  V.  Fuquay 

536 

547 

Whittemore  v.  N.  Y.,  etc.,  R.  R. 

Co. 

552 

I'.  Whittemore 

556 

Whitten  v.  Jenkins 

166 

Whitten  v.  Whitten  144 
Whittick  V.  Kane  236 
Whittington  v.  Wright  450 
W^hittlo  V.  Skinner  527 
Whitton  V.  Whitton  61)0 
W^hitwood  Chemical  Co.  ?>.  Hard- 
man  665 
Whitworth  r.  Gaugain  430 
V.  Whyddon  780 
Whyte  r.  Meade  373 
Wiard  v.  Brown  777 
Wick  V.  Bredin  288 
Wickes  r.  Clark  389 
Wickham  v.  Berry  90 
Wickliffe  v.  Breckenridge  428 
Wricks  r.  Mitchell  175 
Wieland  v.  Kobick  450 
Wier's  Appeal                           637,  639 
Wierse  v.  Thomas  585 
Wigg  I'.  Tyler  757 
?>.  Wigg  416 
Wiggin  i\  Machine  Co.  62 
Wiggins  V.  Bisso  66 
V.  Armstrong  659 
V.  Atchison,  T.  &  S.  F. 
R.  R.  Co.  604 
Wigram  v.  Buckley  428 
Wilbanks  v.  Wilbanks  452 
Wilbur  V.  Flood  315 
Wilcocks  r.  Wilcocks  742 
Wilcox  V.  Bates  244 
V.  Hill  418 
V.  Howell  451 
V.  Leominster  Bank  420 
V.  Ryals  658 
V.  W^heeler  620 
V.  Wilcox                     717,  742 
Wilde  V.  Fort  567 
V.  Fox  561 
V.  Wilde  189 
Wilder  v.  Keeler  723 
V.  Ranney  468 
V.  Wilder  496 
Wilderman  r.  Baltimore  206 
Wilen's  Appeal  297 
Wiles  r.  Wiles  182 
Wiley  V.  Bird  778 
V.  Ewing  236 
Wiley's  Ex'rs  Appeal  636 


TABLK    or    OASES. 


ClV 


[The  references  are  to  the  pages.] 


Wilhelm's  Appeal 

52 

William 

s  V.  Davis 

387 

Wilhite  V.  Roberts 

26:i 

V.  Davison's 

Estate          3f57 

v.  Skelton 

72 

V.  Dutton 

606 

Wilkes  (,'.  Holmes 

:5U5 

V.  Evans 

562 

r.  Phillips 

404 

V.  Fitzhugh 

345,  681 

Wilkio  r.  City  of  Chicaj^o 

595 

V.  Fowler 

54 

Wilkin  V.  ('it  vol' St.  Paul 

(324 

V.  Green 

286 

V.  Wiikin 

095 

V.  Haddock 

467 

Wilkins  v.  Evans 

568 

V.  Hollingsworth 

142 

V.  French 

237 

V.  Johnson 

658 

V.  Gibson 

492 

499 

V.  Kemper 

101,  386 

V.  McCorkle 

426 

V.  Kershaw 

209 

Wilkinson  r.  CoUey 

284 

V.  Knight 

460 

V.  Dent 

458 

459 

V.  Lambe 

407 

, 413, 706 

V.  Getty 

303 

V.  Leech 

90,  94 

V.  Searcy 

441 

V.  Lobban 

474 

V.  Stitt 

541 

V.  Medlicot 

525 

V.  Tousley 

345 

V.  Mitchell 

313 

Co.  V.  Mcllquam 

625 

V.  Neely 

61 

Wilks  V.  Fitzpatrick 

182 

V.  Overholt 

505 

W^llard's  Appeal 

774 

V.  Pearson 

206,  208 

Willard  ?'.  Dcnise 

419 

V.  Pile 

587 

V.  Eastham 

174 

176 

V.  Roberts 

151, 522 

V.  Tayloe              67, 

544, 

547 

V.  Savage    Mfg.    Co. 

Willcox  V.  Consol.  Gas  Co. 

007 

(The) 

343 

691,  692 

WiUe  V.  Wille 

360 

V.  Sprigg 

421 

Willett  I'.  Sandford 

87 

V.  Spurr 

328,  329 

V.  Winnell 

239 

r.  Stratton 

525 

William  NicoU,  In  re 

756 

V.  United  States 

297 

Williams's  Appeal        90,  91 

,  187 

400 

V.  Wager 

140 

Williams  l\  Avery 

167 

r.  Waters 

166 

V.  Baily 

189 

V.  Wiggand 

695 

V.  Baker 

449 

r.  Williams 

135, 

145,  194, 

V.  Bayley 

'ACA 

362 

369,  415,  418 

562, 610 

('.  Beard 

237 

Williamson  v.  Berry 

750,  755 

r.  Beazley 

329 

V.  Brown 

417 

418,422 

V.  Bradley 

325 

V.  Dils 

549 

V.  Brown 

135, 

73] 

V.  Krohn 

373 

V.  Callovif 

186 

V.  New  Jersey  South- 

•i'. Carle 

394 

ern  R 

Co. 

259 

V.  Champion 

295 

/'.  Wilson 

715, 

716,  782 

V.  Chapman 

261 

W 

illiard 

r.  Williard 

111,  135 

V.  Chicago     Exhibition 

W 

illiman  v.  Holmes 

168 

Co. 

617 

w 

illing 

V.  Peters 

476 

1).  Claiborne 

167 

w 

illis  r. 

Chapman 

714 

V.  Clink 

390 

V. 

Gattman 

299 

V.  Committee 

129, 

130 

V. 

Henderson 

290 

V.  Coombes 

699 

V. 

Jernegan 

691 

V.  Craig 

488 

V. 

Kyraer 

132 

clvi 


TAHLK    OF    CASKS. 


[The  references  are  to  the  pages.] 


Willis  V.  Robertson  VS7 

V.  Willis  141 

Willoughby  v.  Middleton        452,  4G0 

V.  Moulton  315 

Wills's  Appeal  220,  367 

Wills  V.  Slade  694 

V.  Wood  404 

Willson  V.  Mayor  of  Baltimore       287 

Wilmarth  v.  Woodcock  634 

Wilmer  v.  Farris  562 

Wil.  &  Bait.  R.  R.  Co.  v.  Woelp- 

per  261 

Wilmot  V.  Maccabe  763 

V.  Pike  412 

Wilson  V.  Anderson  119 

V.  Anthony  405 

V.  Amy  459 

V.  Carpenter  332 

V.  Gather  634 

V.  Daniel  394 

V.  Drumrite  240 

V.  Getty  680 

V.  Hart         410,  420,  664,  707 
V.  Hey  627 

V.  Hill  622 

V.  Hundley  403 

V.  Ivy  317 

V.  Joseph  73 

V.  Love  283 

V.  Mallett  689,  690 

V.  Moriarty  680 

V.  New    U.    S.    Cattle 

Ranch  Co.  317 

V.  Northampton  &  Ban- 
bury Junction  R.  Co.  766 
V.  O'Learj'  746 

V.  Ott  294 

V.  Patrick  242,  243 

V.  Read  670 

V.  Roots  682 

V.  Russell  250 

V.  St.  L.  &  W.  Ry.  Co.       263 
V.  Troup  156 

V.  Williams  557 

V.  Wilson  189,  190,  228, 

259,  397 
Wilt  V.  Hoffman  258 

Wimer  v.  Smith  334 

Wimpfheimer  v.  Perrine  263 


Winch's  Appeal  608 

Winchell  v.  Circuit  Court  637 

V.  Edwards  438 

Winchester  v.  Mabury  734 

V.  Machen  180 

Windfall  Mf^.  Co.  i\  Patterson       635 

Winebrenner  r.  Colder  668 

Winfield  v.  Bacon  588 

V.  Bowen  542 

Wing  i\  Cooper  243,  244 

Wingate  v.  Dail  561 

Wingerter  v.  Wingerter  377 

Wingfield  v.  Crenshaw  635 

Winifrede  Coal  Co.  v.  Board  of 

Education  ()04 

Winn  i\  Lippincott  (The)  Co.         521 

V.  Strickland  777 

Winne  v.  Winne  542 

Winnett  v.  Adams  59 

Winslow  V.  Cummings  199 

V.  Leland  731,  736 

^  V.  Young  138 

Winston  v.  Gwatlmiey  335 

V.  Miller  150 

Winter's  Appeal  334 

Winter  v.  Goebner  546 

V.  Lord  Anson  521 

V.  Ludlow  15 

Wintermute  v.  Snyder  292,  339 

Winters  v.  Fain  518,  522 

Winthrop  Co.  v.  Clinton  101 

Winton  v.  Hart  439 

Wintour  r.  Clifton  459 

Wipfler  V.  Wipfler  146 

Wirsching  v.  Grand  Lodge      299,  301 

Wise  V.  Perpetual,  etc.,  Co.  225 

V.  Shepherd  504 

Wiseley  v.  Findley  692 

Wiser  v.  Lawler  440 

222,  224,  297, 

363,  372,  550 

583,  763 

52 

251 

93 

234 


Wistar's  Appeal 

Wistar  v.  McManes 
Wiswall  V.  McGown 
Witczinski  r.  Everman 
Witham  v.  Broomer 
Witherell  v.  Wiberg 
Witherington  v.  Herring         119,  123 
Withers  v.  Carter  504 

V.  Yeadon  132 


TABLIv  OF    f'ASES. 


clvii 


[The  references  are  to  the  pages.] 


Withy  V.  Cottle 
Witman  v.  Lex 
Witmer's  Appeal 
Witt  V.  Carroll 
V.  Day 


540 

192,  194,  206,  208 

659 

151 

316,  368 


Witter  V.  Richards  720 

V.  Witter  82 

Woddrop  V.  Weed  64 

Woerz  V.  Rademacher  146 

Wolcott  V.  Robbing  54,  708 

Wolf  V.  Corby  109 

V.  Great  Falls  Water  Co.           60 

Wolfe  V.  McMillan  243 

V.  Scarborough  707 

Wolff's  Appeal  111 

Wolfinger  v.  Fell  91 

Wolford  V.  Farnham  108 

V.  Herrington  337,  402 

WoUaston  v.  King  457 

V.  Tribe  119 

Wollstonecraft,  Matter  of  752 

Wolmershausen  v.  Gullick  484 

Wolters  V.  Shraft  136 

Wolverhampton,  etc.,  R.  Co.  v. 

London,  etc.,  R.  Co.  576,  663 
Womack  v.  Austin  367 
Women's  Christian  Ass'n  v.  Kan- 
sas City  203,212 
Wonderly  v.  Lafayette  Co.  586,  604 
Wonson  v.  Fenno  549,  684 
Wood's  Appeal  418,  434 
Wood's  Ex'rs  v.  Dialogue  263 
Wood  V.  Barker  392 
V.  Blany  437 
V.  Bumham  96 
V.  Church  216 
V.  Cone  470 
V.  Cox  112 
V.  Craft  339 
V.  Dodgson  498 
V.  Downes  371 
V.  Goff  315 
V.  Guarantee  Trust  Co.        507 
V.  Leland  484 
V.  Little  692,  697 
V.  Mann  412 
V.  Patterson  302 
V.  Potts  386 
V.  Seely  450 


Wood  V.  Shepherd  544 
V.  Sutcliffe  632 
V.  Trask  234 
V.    Union,    etc.,  Associa- 
tion 680 
V.  Wood  752 
Woodbridge  v.  Irslee  54 
V.  Perkins  272 
Woodbury  v.  Turner  Mfg.  Co.         284 
Sav.     Bank  v.    Ins. 
Co.  300 
Woodcock  V.  Bennet  683 
Woodhouse  v.  Crandall  149 
Woodhurst  v.  Cramer  299 
Woodlee  v.  Burch  157 
Woodman  v.  Freeman  56,  313, 

571,  683 

Woodruff  V.  Jabine  326 

V.  Marsh  213 

V.  Warner  326 

V.  Water  Power  Co.         533 

V.  Williams  317 

V.  Woodruff  216 

Woods  V.  Bailey  519 

V.  Farmere  418,  425 

V.  Garnett  425 

V.  Hall  325 

V.  Hilderbrand  235,  237 

V.  Irwin  156 

V.  Monroe  596 

V.  Wallace  240 

V.  Ward  137 

Woodside  v.  Hewel  142 

V.  Lippold  302 

Woodson  V.  Hopkins  66 

Woodward  v.  Harris  554 

V.  Lazar  651 

V.  Miller  325 

V.  Schalzcll  785 

V.  Woodwnrd  56,  114 

Woodworth  v.  Van  Buskerk  586 

Woodyear  v.  Schaefcr  637 

Wooldridge  v.  Norris  i'HG 

Woollam  V.  Hearn  245,  400,  401,  402, 

550,  558,  559,  676 

Woolmer's  Estate  157 

Woohidge  v.  Woolridge  457 

Word  V.  Davis  292 

Wordekoff  v.  Evers  54 


I'iviii 


'lAliLi-;    "I     CASI'iS. 


[The  references  are  to  the  pages. 1 


Worden  v.  California  Fig  Syrup 

Wright  V.  Trustees  of  Methodist 

Co. 

652 

Episcopal  Church      470 

Work  V.  Bray  ton 

552 

V.  Vanderplank 

363,  :'.69 

V.  Harper 

425 

V.  Wright    179,  256, 

259,  341, 

V.  Welsh 

55.3 

470 

World's    Columbian    Exposition 

Wulbern  v.  Timmons 

149 

Case                          58,  200 

591 

,669 

WulfT  V.  Superior  Court 

716 

Worley  v.  Tuggle 

292 

299 

Wurtz  V.  Page 

467,  468 

Wormald  )'.  Maitland 

426 

Wyatt  r.  Barwell 

426 

Wormer  i'.  Waterloo  Agr.  Works 

494 

V.  Wat  kins 

257,  261 

Wormley  v.  Wormley 

670 

Wyche  v.  Greene 

545,  677 

Worrell's  Appeal 

221 

Wyckoff  V.  Howe  Scale  Co. 

656 

Worrell  v.  The  Church 

583 

Wylson  V.  Dunn 

551 

Worseley  r.  De  Mattos 

408 

Wynkoop  v.  Cowin 

240 

Worsely  v.  Burlington  Ins.  Co. 

300 

Wynn  v.  Brooke 

484,  486 

Worsley  v.  Scarborough 

427 

V.  Newman 

585 

Worth  V.  McAlden 

227 

Wynne  ik  Alston 

519 

Worthington,  In  re 

264 

V.  Jackson 

590 

Worthington  v.  Miller 

778 

V.  Price 

539 

V.  Scribner 

767 

V.  Tunstall 

698 

V.  Tormey 

528 

Wythes  v.  Lee 

523 

V.  Waring 

670 

V.  Wiginton 

459 

/ 

X 

Worthy  v.  Tate 

281 

^t^> 

Wotten  i\  Copeland 

696 

Xenia  Real  Estate  Co.  v.  Macy       662 

Wragg  I'.  Comp.-Gen. 

519 

Wray  v.  Wray 

361 

Y 

Wren  v.  Kirton 

219 

Wright  V.  Astoria  Co. 

568 

Yale  V.  Dederer 

174,  175 

V.  Atkinson 

489 

Yale  Gas  Stove  Co.  v.  Wilcox         375 

V.  Atkyns 

128 

Yancey  v.  Field 

123 

V.  Brown 

173 

Yard's  Appeal 

212 

V.  Carter 

367 

370 

Yard  i\  Patton 

113 

V.  Ellison 

269 

Yarnall's  Appeal 

91,96 

V.  Grover 

493 

Yates  V.  Jack         - 

580 

V.  Gully 

334 

I'.  Stuart 

687,  689 

?'.  Henderson 

234 

V.  Tisdale 

599 

V.  Hunter 

483 

r.  West  Grafton 

667 

V.  Maidstone 

282 

V.  Yates 

242 

t'.  Marsh 

692 

Yeackel  v.  Litchfield        156, 

159,  160 

V.  McCord 

438 

Yeager  v.  Woodruff 

440 

V.  Miller 

115 

Yeaney  v.  Keck 

377 

V.  Pearson 

96 

112 

Yeates  v.  Groves 

266 

V.  Packet 

561, 

562 

V.  Pryor 

334 

V.  Rose 

474 

Yeiser  v.  U.  S.  Board  &  Paper 

V.  Shanahan 

624 

Co. 

377 

V.  Snowe 

450 

Yerkes  v.  Perrin's  Estate 

109 

V.  Superior  Court 

762 

Yingling  v.  Redwine 

244 

i'.  Tatham 

775 

Yonge  V.  Reyiull 

481 

TABLE    OF    CASES. 


'lix 


[The  references  are  to  the  pages. ^ 


York  V.  Gregg  330 

York  (Mayor  of)  r.  Pilkiuton  591, 

603,  708 
York  Park  Building  Assoc'n  v. 


444 
551 
626 
454 
329 
541 
561 
566 
174 
550 
129 
625,  638 
77 
440 
520 
54,  168, 174,  512 

Youngmen  v.  Elmira  R.  Co.  234,  238, 

429 

Young    Men's    Society    v.    Fall 
River  195 

Yount  V.  Yount  360 

Youst  V.  Martin  416 


Barnes 
Yost  V.  Devault 
Young,  Ex  parte 
Young  V.  Biehl 

V.  Bumpass 
V.  Burton 
V.  Crawford 
V.  Frost 
V.  Graff 
V.  Jordan 
V.  Martin 
V.  Rothrock 
V.  Snow 
V.  Vough 
V.  Wood 
V.  Young 


Yovatt  V.  Winyard  610 

Yule  V.  Yule  186 


Zahn  V.  McMillin  328 

Zane  v.  Weintz  555 

Zane's  Will  208 

Zeissweiss  v.  James  199,  206,  210 

Zempel  v.  Hughes  339 

Zerbe  v.  Miller  383 

Zevely  v.  Weimer  607 

Ziegler  v.  Long  504 

Zimmerman  v.  Barber  141 

V.  Bitner  363 

V.  Davis  351 

V.  Franke  73 

V.  Makepeace  609 

V.  Streeper  113 

Zinc  Co.  V.  Franklinite  Co.  633 

Zinkeison  v.  Lewis  316,  495 

Zollman  v.  Moore  294,  412,  430 

Zuchtmann  v.  Roberts  436 

Zundell  V.  Gess  141,148 

Zunkel  v.  Colson  147 

Zuver  V.  Lyons  244 

Zwingle  v.  Wilkinson  521 


THE 


PRINCIPLES  OF  EQUITY. 


INTKODITCTION. 


CHAPTER  I. 


RISE  AND  PROGRESS  OF   THE    HIGH    COL'RT  OF  CHANCERY. 


1.  Definition  of  equity. 

2.  Importance  of  the  historical  view 

of  equity. 

3.  Early  English  courts;  the  councils 

of  the  king. 

4.  Ordinary   council,   or  curia  regis; 

Exchequer  and  Common  Pleas. 

5.  Court  of  King's  Bench. 

6.  Position  of  the  chancellor. 

7.  Origin  of  his  extraordinary  juris- 

diction. 

8.  Cases   in    which   this   jurisdiction 

was  exercised. 

9.  General  conclusions  deduced  from 


the  above^writ  of  subpoena 
— pleadings  and  evidence. 
10.   Progress  of  the  jurisdiction  of  the 
chancellor. 
Changes   in   the   English   sj-stem 
introduced   by  Act  of  August 
5,  1873. 
Principles  of  equity  adopted  in 
the  United  States. 

13.  Jurisdiction  of  the  federal  courts. 

14.  Changes  of  mode  of  procedure  in 

some  of  the  States. 

15.  Classification  of  the  states  upon 

this  subject. 


11 


12 


1.  Definition  of  Equity. 

Equity  is  that  system  of  justice  which  was  administered  by 
the  High  Court  of  Chancery  in  England  in  the  exercise  of  its 
extraordinary  jurisdiction. 

This  definition  is  rather  suggestive  than  precise;  and  invites 
inquiry  rather  than  answers  it.  But  this  must  necessarily  be  so. 
Equity,  in  its  technical  and  scientific  legal  sense,  means  neither 
natural  justice  nor  even  all  that  portion  of  natural  justice  which 
is  susceptible  of  being  judicially  enforceil.  It  has,  when  em- 
ployed in  the  language  of  English  law,  a  precise,  definite  and  lim- 
ited signification,  and  is  used  to  denote  a  system  of  justice  which 
was  adiuinistered  in  a  pailirular  court— the  nature  and  extent 
1  1 


2  RISE    AND    rROGRESS    OF    THE"  [CH.  I. 

of  \vhich  system  cannot  Ije  defined  in  a  single  sentence,  but  can 
be  understood 'and  explained  only  by  studying  the  history  of 
that  court,  and  the  principles  upon  which  it  acts.  In  order 
to  begin  to  understand  what  ecjuity  is,  it  is  necessary  to  under- 
stand what  the  English  High  Court  of  Chancery  was,  and  how 
it  came  to  exercise  what  is  known  as  its  extraordinary  juris- 
diction. Every  true  definition  of  equity  must,  therefore,  be, 
to  a  greater  or  less  extent,  a  histor}'.*  This  history  was,  in  a 
certain  sense,  rounded  and  completed  by  the  passage  of  the  "  Su- 
preme Court  Judicature  Act  of  187':j,"  and  its  amendments, 
whereby  the  judicial  system  of  England  has  been  recast,  and 
the  distinction  between  courts  of  equity  and  courts  of  law 
abolished,'  By  that  act  it  was,  in  substance,  provided  that, 
after  the  second  day  of  November,  1874,  the  administration  of 
justice  in  all  courts  should  be  regulated  by  the  principles  of 
equity  ;  and  its  passage,  notwithstanding  the  many  difficulties 
which  arose  in  carrying  it  into  j)ractical  effect,  may  be  consid- 
eretl  as  the  final  triumph  of  those  principles,  after  a  struggle  of 
many  centuries'  duration,  and  as  a  full  recognition  of  their  use- 
fulness and  wisdom. 

2.  Historical  view  import  ant. 

Nor  is  this  histoi-ical  character  of  the  definition  of  equity 
any  the  less  to  be  regarded  in  the  United  States  than  in  Eng- 
hind. 

In  the  Federal  Courts  the  limits  of  equitable  jui-isdiction  are 
to  be  ascertained  by  reference  to  the  boundaries  within  which 
the  ])owers  of  the  English  Court  of  Chancery  were  exercised  ; 
and  that  this  rule  is  of  a  practical,  and  not  merely  of  a  theoret- 
icil,  inqxntance  is  most  strikingly  illustrated  by  a  comparn- 
tivi'ly  recent  decision  of  the  Supremo  Court.^ 

As  to  the  State  Courts,  in  some  states  of  the  Union  the  prin- 
ciples of  equity  are  administered  through  the  medium  of  com- 

'  So,    also,    the    .iHquitas    of    tho  lisli  equity  as  "the  jurisprndenre  of 

Rnmnn  law  can  only  l>o  definnd  by  the  Court,  of  Chancery."     Id.   44. 
tracing  the  history  of  that  law.     It  is  '  36  and  37  Vict,  c  66;   L.   R.   8 

almost  as  incapable  of  definition  in  Stats.  306. 

a    sinfjle    sentence    as    the    Enc;lish  ^  United   States  ?'.   American    Bell 

"equity,"  with  which,  by  the  by,  it  Telephone  Co.,   128   U.   S.   315,   and 

should     not     be     confounded.      See  the  opinion  of  .Mr.  Justice  Miller  on 

Mainf''.^;  Vn^'i-mt  T,tw,  rhap.  iii.     Tiie  pp.  359-360-361. 
9ame  author  describes  or  defines  Eng« 


CH.  I.]  HIGH   COUUT    OF   CHANCERY.  3 

mon-law  or  statutory  forms  ;^  in  some,  the  common-law  judges 
act  also  as  chancellors ;  and  in  a  third  class  courts  of  chancery 
(by  that  name)  exist.  All  of  these  look  for  their  guidance  to 
the  principles  which  were  developed  in  the  English  Court  of 
Chancery,'^  and  the  first  inquiry  of  the  student  in  this  branch 
of  law  must  always  bo  directed  to  the  origin  and  growth  of 
that  tribunal,  and  the  character  of  the  relief  Avhich  it  adminis- 
tered. 

3.  Early  English  Courts  ;  King's  Councils. 

To  appreciate  the  nature  of  this  equitable  relief,  and  the 
reason  ^vhy  redress  of  this  peculiar  sort  came  to  be  affoi'ded  by 
the  chancellor,  we  must  look,  for  a  moment,  at  the  general  sys- 
tem of  English  remedial  law  as  it  existed  in  early  times. 

According  to  the  plan  which  was  established  after  the  Nor- 
man Conquest,  the  local  tribunals  which  had  existed  under 
Edward  the  Confessor,  and  which  consisted  of  the  county, 
hundred,  and  borough  courts,  together  with  the  manor  courts 
and  courts  baron,  were  retained ;  but  the  supreme  judicial 
(and,  indeed,  all  other)  authorit\^  was  vested  in  the  king,  as- 
sisted bv  his  councils. 

These  councils  were  two  in  number — the  great  council,  after- 
wards called  the  parliament,  and  the  small  or  ordinary  council, 
which  advised  the  king  during  the  intervals  between  the  ses- 
sions of  the  great  council,  but  which  appears  to  have  formed 
part  of  the  latter  when  in  session.^ 

The  great  council  was  composed  of  the  bishops,  earls,  and 
barons,  and  such  knights  as  held  of  the  king  i)i  aipite.  Its 
duties  were  perhaps  as  much  judicial  as  legislative,  and  in  both 
l)ranrhes  its  action  was  advisoiy  rather  than  potential.'  The 
king,  in  fact  j)erhaps,  and  certainly  in  theory,  enacted  laws  and 
redi-essed  particular  grievances  (of  which  complaints  were  made 
by  [X'tition)  with  the  advice  and  assistance  of  the  magnates  of 

'  See  Pollard  v.  Shaffer,  1  Dal.  21.3;  what  he  had  heard   Lord   Hardwicke 

Jordan  v.   Cooper,    '.\   S.   it    U.   585;  say. 

Church  V.  Ruland,   61  Pa.  441.  -^  See  1  Spence  Eq.  328,  and  notes. 

'  This  guidance  may  be  said  to  have  *  "Generally  speaking,   indeed,   as 

been,  in  some  instances,  of  a  personal  regards  all  matters  besides  taxation, 

character.     See  remarks  of  Chief  Jus-  it  was  the  advice  even  of  the  Lords 

tice   Shippen    in    Levy    v.    Bank    of  rather  than  their  assent  that  the  king 

United  States,  1  Binn.  27,  37  (Storys  appears  to  have  required."     1  Spence 

Eq.    Juriip.    §  130,    note     1),    Uo   to  E(j.  26G. 


4  RISE    AND    PnOGRESS    OF    THE  [CH.  I. 

the  realm  ;  and  although  modern  English  legislation  has  de- 
parted widely  from  the  ancient  in  substance,  its  theory  is  in 
this  resjiect  still  the  same,  and  statutes  are  still  supposed  to  owe 
their  existence  to  the  will  of  the  sovereign  after  taking  the 
counsel  of  Parliament;  that  is,  the  sovereign  is  assumed  (by  the 
langiiagii  of  all  acts  of  Parliament)  to  enact  laws,  the  lords  and 
commons  consenting  to  the  enactment. 

It  is  unnecessary  to  trace  the  growth  and  powers  of  the  great 
council.  To  it,  indifferently  with  the  smaller  council,  was 
formerly  applied  the  name  of  curia  regis — a  term  which  was 
sul)se(iuenth'^  used  to  designate  the  latter  Council  only,  and  the 
meaning  of  which  was  afterwards  still  further  narrowed  so  as 
to  apply  to  the  Court  of  King's  Bench  alone. 

4.  Curia  regis;  Exchequer;   Com mou  Pleas. 

The  oi-dinaiy^  council  of  the  king  was  composed  of  such 
barons  of  the  realm  as  were  selected  bv  him :  certain  officers 
of  tiie  palace,  such  as  the  constable,  raaishal,  chamberlain  and 
others  ;  and  to  these  Avere  afterwards  added  persons  learned  in 
the  law,  who  were  styled  justiciar ii .  together  with  others  some- 
times specially  summoned  by  writ  from  the  chancellor's  oflBce.* 

This  council  was  the  great  judicial  centre  of  the  kingdom,  from 
which  all  justice  emanated  ;  not  that  the  council  had,  as  a  body, 
in  the  early  stage  of  its  existence,  the  attributes  of  a  court ;  but 
simply  because  the  supreme  authority,  including  the  supreme 
judicial  ])ower,  was  vested  therein.-  The  term  curia  regis,  as 
applied  to  the  council,  was  used  in  the  sense  of  the  royal  resi- 
dence or  household,  frequented  by  the  nobles  and  magnates  of 
the  realm,  where  the  king  sometimes  sat  in  person  with  the 
chief  justiciary  and  chancellor,  attending  (among  other  things) 
to  complaints  of  grievances,  which  were  originally  solely  as  to 
revenue.^     The  same  term  (curia  regis)  was  applied  to  the  county 

'  1  Spence  Eq.  329;  1  Foss's  Judges,  '  1  Reeves's  Hist,  of  English  Law, 

10.  85,    Finlason's    note;    1   Spence   Eq. 

'  "The  curia  regis,"  says  Mr.  102.  Mr.  Finlason's  notes  to  Reeves 
Spence,  speaking  of  the  time  of  Glan-  have  been  very  severely  criticized  (see 
ville  (x.  D.  1179-1180),  "can  hardly  a  notice  b}^  Henrich  Brunner,  trans- 
yet  be  considered  as  designating  a  dis-  lated  for  the  American  Law  Review  of 
tinct  judicial  tribvmal;  concilium  and  October,  1873,  vol.  viii.,  No.  1),  but 
curia  are  sonietiraea  used  as  synony-  his  conclusions  upon  this  point  seem 
mous  even  by  Bractoii."  1  Spence  to  be  sound.  See  also  articles  iu 
Eq.  119,  note  c.  Edinburgh  Review,  vol.  33,  p.  11. 


CH.  I.]  HIGH    rOFRT    OF   CHAXCERY.  5 

courts,  but  in  aditrerent  sense,  as  the}^  were  the  hinges  courts  of 
justice.^  The  curia  regis,  or  council,  appears  to  have  become  in 
the  reign  of  Henry  I.  the  regular  court  of  ultimate  appeal  from 
all  the  courts  of  ordinary  jurisdiction.''^  Out  of  this  royal  court, 
or  council,  courts  of  justice  (properly  so-called)  of  original  juris- 
diction gradually  arose,  and  their  origin  and  manner  of  growth 
appear  to  have  been  In'iefly  as  follows: 

The  oldest  court  (in  the  strict  sense  of  the  term)  Avhose  exist- 
ence can  be  distinctly  traced  is  the  Exchequer.'"  The  Exchequer 
was  originally  ordy  an  office^  ordained  for  matters  of  the  king's 
revenue  ;  and  where,  subsequently,  two  knights  (or  barons),  two 
clerks,  and  two  men  learned  in  the  law,  wei'e  assigned  to  hear  and 
determine  these  matters.  The  persons  so  assigned  were  styled 
Barons  of  the  Exchequer,  the  term  employed  until  a  very  recent 
date.  In  process  of  time  common  suits,  i.  e.,  suits  between  subject 
and  subject,  came  to  be  brought  in  the  Exchequer,  perhaps  be- 
cause it  was  felt  that  justice  could  be  more  impartially  and 
learnedly  administered  by  the  Barons  of  the  Exchequer  than  in 
the  ordinary  county  courts.^  Xow,  the  court  or  household  of  the 
king  was,  it  will  be  remembered,  ambulatory ;  it  accompanied 
the  king  in  his  journeys,  and  business,  both  legislative  and  ju- 
dicial, was  transacted  at  the  different  places  where  the  court 
happened  to  be  held.  This,  as  is  well  known,  w^as  the  occasion 
of  great  inconvenience  so  far  as  common  suits  or  pleas  were  con- 
cerned, as  the  suitors  wei-e  thus  obliged  to  travel  to  different 
pails  of  the  kingdom  in  order  to  obtain  redress.  Hence,  the 
celebiated  pi'ovision  of  Magna  Charta  enacted  that  common 
])leas  should  no  hmger  follow  the  Uing,  and  hence  the  (/ourt  of 
Cijuimon  Bleas  arose  as  a  distinct  tribunal  fixed  by  law  at 
Westminster. 

5.  Court  of  King's  Bench. 

It  has   been  ali'eady  stated   that  the  county  courts,  which 

'  1   Reeves's   Hist.   Eng.   Law,  84,  were  not,  in  early  times,  defined  with 

and  i.ote.  very     great      precision.     Thus     the 

^  1  Spence  Eq.  107;  1   Foss's  Hist.  Court  of  Exchequer  exercised  juris- 

Judges,  9.  diction  as  a  court  of  equity,  princi- 

'  Edinburgh  Review,  vol.  33,  page  pally,    however,    in    cases   of   tithes. 

11;  notes  to  Reeves's  Hist.  Eng.  Law,  But  this  jurisdiction  never  attained 

vol.  1,  page  85  (Finlason).  any  great  importance,  and  was  finally, 

*  See  article  in  Edinburgh  Review,  by  Stat.  5,  Vic.  c.  5,  §  1,  transferred 

vol.  33,  page  12.     The  limits  of  the  to  the  Court  of  Chancery.     Mitford's 

jurisdiction    of   the    different    couns  Pleading,  6. 


6  KTRE    AND    rnomiESS    OF   THE  [CH.  T. 

were  of  criminal  as  well  as  civil  jurisdiction,  were  retained  after 
the  Conquest,  owing  to  the  popularity  of  these  tribunals,  and  to 
the  tenacity  with  which  people  clung  to  their  old  institutions.^ 
These  somewhat  tumultuous  courts  (or  assemblies,  as  the}" 
might  more  properly  be  called)  were  under  the  presidency  of  the 
sheriff,  who  was  appointed  by  the  king.  In  order  to  insure  a 
proper  administration  of  the  law,  and  to  increase  the  royal  in- 
fluence, it  became  customary  to  appoint  the  sheriffs  from  the 
justices  attached  to  the  king's  household,  or  curia  regis  ■  -  and 
sometimes  men  learned  in  the  law  were  sent  down  b}'  special 
commission  to  hold  these  courts.  It  thus  came  to  pass  that 
itinerant  justices  went  down  from  the  cui'ia  regis  to  the  counties, 
and  there  held  the  county  courts.  But  one  step  more  was 
necessary  to  constitute  a  distinct  tribunal  of  general  jurisdic- 
tion, namely,  that  befoi-e  the  judge  went  down  to  try  the  cause, 
the  exact  matters  in  dispute  should  be  settled  and  the  questions 
of  law  separated  and  determined.  Hence  the  king's  justices  who 
luet  for  this  pur[iose,  and  who  were  afterivards  dispatched  into 
the  different  counties,  to  preside  over  the  trial  of  the  issues 
thus  made  up,  came  to  constitute  a  distinct  tribunal,  the  King's 
Bench.  To  this  tribunal,  also,  the  name  of  curia  regis  h'ds  been 
applied.^  This  result  was  probably  brought  about  by  Glanville, 
in  the  reign  of  Henry  11.^  In  this  wav  the  ctiria  regis,  as  it 
were,  drew  to  itself  and  absorbed  the  jurisdiction  of  the  county 
courts;^  and  the  vast  increase  of  business, C(msequent  upon  this 
change,  although  not  the  arigin  of  the  Court  of  King's  Bench, 
Avas  one  of  the  reasons  for  its  distinct  and  separate  existence. 

To  return  to  the  ordinary  council,  or  household  of  the  king. 
The  council  accompanied  the  king  in  his  movements ;  and 
writs  for  the  redress  of  grievances  were  made  returnable — /.  e., 
the  cause  was  to  be  heard — before  the  king  wherever  he  should 
be  in  England. 

Over  the  ordinary  council,  a  great  officer  of  state,  the  chief 
justiciary  of  all  England,  ])resided.  His  position  in  the  realm 
was  next  in  rank  to  that  of  the  sovereign  ;  and  in  the  absence 
of  the  latter  from  the  kingdom,  the  chief  justiciary  acted  as 

'1  Reeves's  Hist.  Eng.  Law,  Fin-  'See  1   Reeves's  Hist.  Eng.  Law, 

lason's  Notes,  80.  Finlason's  notes  80,  89. 

M    Reeves's  Hist.   Eng.   Law,  80;  <  Id. 

see  also  1   Fuss's  Judges  of  England,  '  1  Foss's  Judges,  171. 

171.  189,  377. 


CH.  I.]  HIGH    COT  RT    OF    PHAXCKRY.  7 

regent.     This   great   office  was  discontinued   in  the  reign  of 
Henry  III.^ 

6.  Position  of  the  Chancellor. 

I'he  chancellor  was  the  secretarj^  of  the  king,^  and  probably 
acted  as  the  secretary  of  the  council.  From  his  office  (the 
chancery)  issued  the  writs  which  authorized  suitors  to  bring 
their  plaints  before  the  king's  courts.  For,  in  the  ordinary 
administration  of  justice,  no  action  could  be  brought  in  the 
king's  court  except  such  as  concerned  the  king — the  remedy 
between  subject  and  subject  being  in  the  county  and  hundred 
courts.  When,  however,  dissatisfaction  came  to  be  felt  at  the 
decisions  of  the  local  courts,  t!ie  parties  began  to  apply  to  the 
king's  court,  and  obtained  from  the  chancellor's  department 
(the  officina  br&viu7n),  a  writ  applicable  to  their  cases,  and  for 
which  a  fine  was  originally  paid.^  This  payment  having  be- 
come an  instrument  of  injustice,  the  Great  Charter  put  a  stop  to 
it  by  pi'oviding  that  justice  should  no  longer  be  denied  or  sold. 

As  the  council  still  retained  its  general  supreme  authority, 
applications  for  relief  were  frequently  made  to  that  body  when 
redi'ess  could  not  be  otherwise  obtained.  In  considering  such 
applications,  the  advice  of  the  chancellor  would  naturally  be 
followed,  as  he  was  the  king's  secretary,  was  the  keeper  of  his 
c(mscience  (to  which  the  petitions  were  addressed),  and  attended 
his  person.  The  chancellor,  moreover,  was  generally  an  ecclesi- 
astic ;  and  to  churchmen,  in  those  days,  the  learning  of  the  civil 
law,  to  which  the  common  law  is  so  much  indebted,*  was  prin- 
ci  pa  Uy  con  lined.  Besides,  as  from  one  branch  of  the  chancellor's 
department  issued  the  writs  by  which  injuries  were  ordinarily 
retlressed,  he  would  naturally  be  the  most  proper  person  to 
determine  whether  the  case  j)resented  was  one  which  would  fall 
within  the  forms  already  in  use,  or  which  would  call  for  the 
exercise  of  the  extraordinary  jurisdiction  still  held  in  reserve. 
In  some  cases,  therefore,  the  answer  to  petitioners  was,  that 
they  should  have  a  writ  out  of  chancer}^ — in  other  words,  they 

'  1  Foss's  Judges  11.  such    applications,    in    order    to    do 

Md.   13.  away   with   the   local   courts,    which 

^  Park's  Hist.  Chan.  25;  Fleta,  Lib.  were  of  Saxoa  oriiiin. 

2,  cap.    13;  4   Inst.   78;  Story's  Ec].  *  See  Bracton  and  his  Relation  to 

Jurisp.,   §  39.     The  Norman  j;;oveni-  the    Roman     Law,     by    Guterbock, 

ment    would   be   likely  to  encourage  Coxe's  Translation. 


8  RISE    AND   PROGRESS    OF   THE  [CH.  T. 

were  sent  to  the  King's  Bench,  or  Common  Pleas ;  in  others,  the 
('ourt  of  Exchequer  was  pointed  out  as  the  tribunal  in  which 
the  cause  would  properly  be  cognizable ;  while  in  still  a  third, 
the  suitor  would  obtain  relief  (through  the  hands  of  the  chan- 
cellor) directly  from  the  council  in  the  exercise  of  its  extraor- 
diiiai'v  jurisdiction.' 

7.  Origin  of  Chancellor's  Extraordinary  Jurisdiction. 

Of  course,  if  the  Courts  of  King's  Bench,  Common  Pleas, 
an<l  Exchequer  had  been  able  and  willing  to  redress  every  im- 
aginable wrong,  the  reserve  jurisdiction  of  the  council  never 
would  have  been  called  into  play,  and  the  Court  of  Chancery 
never  would  have  grown  into  being.  But  the  jurisdiction  of 
each  of  the  common-law  courts  was  circumscribed.  Certain 
precise  and  rigid  forms  of  action  existed,  which  were  supposed 
to  effectually  carry  out  the  great  maxim  of  justice,  iihi  jvs  ili 
remediutn,  but  which  in  point  of  fact  were  not  sufficiently  com- 
prehensive to  do  so.  No  common-law  writ,  for  example,  existed 
by  which  a  defective  instrument  could  be  refoi'tued,  afrauchilent 
convevance  set  aside,  a  mistake  or  accident  effectuallv  relieved 
against,  or  a  beneficial  interest  in  property  be  enforced  as 
against  the  holder  of  a  legal  title.  Hence  many  injuries  must 
necessarily  and  actually  did  exist,  for  which  the  common-law 
courts  furnished  no  appropriate  redress;  and  therefore  it  was 
that,  finding  no  relief  in  the  King's  Bench  or  Common  Pleas, 
the  suitor  was  compelled  to  throw  himself  upon  the  grace  and 
compassion  of  the  king  and  council. 

Two  or  three  circumstances,  moreover,  concurred  to  render 
this  extraordinary  jurisdiction  liable  to  increase :  first,  the  ten- 
dency of  the  common-law  rules  to  hardness  and  rigidity  by 
reason  of  the  deference  paid  to  precedents  ;  secondly,  the  refusal 
of  the  common  law  to  adopt  that  ])art  of  the  Roman  law  which 
may  be  called  equitable,  as  distinguished  from  that  which  is 
merely  Htricti  juris  /  ^  and,  finally,  the  desire  to  increase  the 
dignity  and  inij)ortance  of  the  office  of  chancellor,  which  grew 
to  great  proportions  after  the  abolition  of  the  office  of  Chief 
Justiciary,  whereby  an  ambitious  holder  of  the  great  seal  would 
naturally  be  led  to  give  redress  by  virtue  of  his  extraordinary 

'  1  Speuce  Eq.  330.     See  al.^o  Rex  '  1  Spence  Eq.  206,  346,  347 

V.  Hare,  1  Str.  Rep.  151;  Story's  Eq. 
Juiisy.,  §§43,  49. 


CH.  T.]  HIGH    COURT    OF    CHANCERY.  9 

jurisdiction,  rather  than  by  directing  a  writ  to  be  issued  to  bring 
the  cause  before  the  ordinary  tribunals. 

Another  ad  vantage,  also,  which  the  relief  administered  by  the 
chancellor  had  over  that  obtained  in  the  common-law  courts, 
and  Avhicli  therefore  tended  to  enlarge  the  exercise  of  the  juris- 
diction of  the  former,  was  this:  A  judgment  at  law  was 
either  simply  for  the  plaintiff  or  simply  for  the  defendant. 
There  could  be  no  qualifications  or  modifications  of  the  judg- 
ment. But  such  a  judgment  <loes  not  always  touch  the  true 
justice  of  the  cause  or  put  the  parties  in  the  position  which  they 
ought  to  occupy.  While  the  plaintiff  may  be  entitled,  in  a 
given  case,  to  general  relief,  there  may  be  some  duty  connected 
\vith  the  subject  of  litigation  which  he  owes  to  the  defendant, 
the  performance  of  which,  equally  with  the  fulfilment  of  his 
duty  by  the  defendant,  (jught,  in  a  perfect  system  of  remedial 
law,  to  be  exacted.  This  result  was  attained  bv  the  decree  of  a 
couft  of  equity,  which  could  be  so  framed  and  moulded,  or  the 
execution  of  which  could  be  so  controlled  and  suspended,  that 
the  relative  duties  and  rights  of  the  parties  could  be  secured  and 
enforced.  This  capacity  of  moulding  a  decree  to  suit  the  exact 
exigencies  of  a  particular  case  is  indeed  one  of  the  most  strik- 
ing advantages  which  procedure  in  chancerv  enjoys  over  that 
at  common  law,  and  must  have  been  one  of  the  elements  which 
contributed  in  no  small  degree  to  the  origin  and  growth  of 
equitable  jurisprudence.^ 

It  was,  most  probably,  to  mitigate  the  rigors  of  the  common- 
law  courts,  and  at  the  same  time  to  check  the  growing  jurisdic- 
tion of  the  chancellor,  that  the  famous  statute  of  Westminster 
11.  (13  Ed.  I.,  c.  24)  was  passed,  authorizing  the  issuing  of 
writs  in  consimili  casu.  The  inability  or  the  unwillinerness  of 
the  chancery  clerks  to  avail  themselves  of  the  provisions  of  the 
statute,  to  any  considerable  extent,  prevented  the  common-law 
courts  from  extending  their  jurisdiction  so  as  to  cover  the  whole 
field  of  remedial  justice,  and  still  rendered  it  necessary  for  the 
suitor  to  apply  elsewhere  for  extraordinary  relief.'  This  extra- 
ordinary relief,  whereby  redress  was  given  to  those  who  were 
without  remedy  in  the  ordinary  courts  of  the  realm,  was  at 
iirst  administered  by  the  council  upon    petition  addressed  to 

'  See    Story's    Eq.    Jurisp.,     §  27;      to  what  extent  the  jurisdiction  of  the 

Mltford's  Pleadina:  3,  4.  chancellor  would  have  gone  if  action 

'  It  x-i  difficult  to  iniagiue,  however,      oii  the  case  had  never  been  invented. 


10  RISE    AND    PROGRESS    OF   THE  [CH.  I. 

them.  Applicalions  of  Lliis  luitiii'o  were,  in  fact,  invocations 
upon  that  I'eserve  force  of  justice  which  still  resided  in  the  curia 
reyis^  ready,  when  occasion  required,  to  be  called  into  play. 
Its  exercise  was  of  favor,  not  of  right ;  and  hence  those  matters 
in  which  it  was  displayed  were  called  emphatically  "  matters  to 
be  oranted  as  of  o-race." 

Wlien  exactly  it  was  tliat  these  applications  came  to  be  made 
to,  and  th(»  rech'ess  conse(]nent  thereupon  came  to  be  afforded 
by,  the  chancellor  alone,  is  an  historical  question  involved  in 
some  doubt.  Certain  it  is,  that  as  early  as  the  reign  of  Edward 
I.  an  ordinance  was  issued  for  the  purpose  of  relieving  the  king 
from  the  business  of  attending  to  petitions  addressed  directly 
to  him,  whereby  it  was  provided  that  "all  petitions  touching 
the  seal  do  come  first  before  the  chancellor  ;  "  and  (providing, 
as  it  were,  for  an  appeal  to  the  king  in  great  cases),  "  if  tlie 
demands  be  so  great  and  so  much  of  grace  that  the  chancellor 
and  those  others  cannot  do  without  the  king,  then  they  shall 
bring  them  before  the  king  to  know  his  will.'"  \ 

A  more  direct  recognition  of  the  chancellor  as  the  proper 
person  by  whom  the  extraordinary  jui'isdiction  in  matters  of 
yrace  was  to  be  administered,  is  contained  in  a  writ  of  Edward 
III.  addressed  to  the  sheriffs  of  London,  whereby  suitors  are 
specifically  enjoined  to  prosecute  those  affairs  which  are  of  grace 
before  the  chancellor,  or  the  keeper  of  the  privy  seal.-  In  this 
i-eign  the  Court  of  Chancery  ceased  to  follow  the  king.^ 

The  natural  consequences  of  these  efforts  on  the  part  of  the 
king  to  delegate  this  branch  of  judicial  authority  to  the  ehan- 
celloi-,  would  be  that  ])etitions  for  relief  would  come  in  time  to 
be  addressed  directly  to  that  officer.  This  result,  in  fact,  shortly 
followed,  and  in  the  reign  of  Richard  II.  the  practice  of  pre- 


'  Haynes's  Outlines  of  Equity,  40;  long  supposed  to  have  been  at  com- 

Story's   Equity  Jurisp.,    §  44.  mon  law;  but  the  recent  publication 

'  Haynes's  Eq.   44.     In   the  same  of  the  Year  Books  of  the   reign  of 

reign  the  jurisdirtion  of  the  court  in  Edw.  III.   (ed.  of  Luke  Owen   Pike) 

matters  other  tliaii  those  of  conscience  shows  this  to  be  erroneous.  The  juris- 

became  of  great  importance.     It  in-  diction  by  scire  facias,  etc.,  was  not 

eluded   pleas   of  scii-e  faciax  for   re-  at  common  law.     Year  Book  12  &  13 

peal  of  letters  patent;  of  petition  of  Edw.  III.,  by  Pike;  Introduction,  ci. 

right  and  mnnstrans  de  droit;  traverse  et  .se  /.,  and  cvi.  et  seq. 
of  offices,  and  some  others.     1  Spence  ^  I  Spence  Eq.  340. 

Eq.  336.     This  jurisdiction  has  been 


CH.  I.]  HIGH    COURT    OF   PHAXCERY.  11 

sen  ting  a  petition  to  the  chancellor  in  the  first  instance  was 
firmly  established.^ 

8.  Cases  in  which  Chancellor's  Extraordinary  Jurisdiction 
was  exercised. 

The  general  ground  for  equitable  relief  was  then,  as  it  pro- 
fesses to  be  now,  either  the  failure  of  the  common-law  courts 
to  recognize  a  rio:ht,  or  their  inabilitv  to  enforce  it. 

Among  the  most  frequent  instances  in  which  this  general 
doctrine  of  equitable  relief  was  applied  were  those  in  which 
petitions  were  addressed  to  the  chancellor  in  cases  of  assault 
and  trespass  and  a  variety  of  outrages  which  were  cognizable 
at  common  law,  but  for  which  "  the  •petitioner  was  unable  to 
obtain  redress  owing  to  the  jyosition  or  powerful  coniiections  of 
his  adversary y  ^ 

While,  with  the  changed  condition  of  society,  the  state  of 
things  which  gave  rise  to  and  required  this  interference  on  the 
part  of  the  chancellors  has  long  ago  passed  away,  and  the  juris- 
diction itself  has  therefore  fallen  to  the  ground,  it  is  still  useful 
to  recur  to  it,  in  order  to  show  the  theory  upon  which  courts  of 
equity  have  always  acted  from  the  earliest  times,  namely,  the 
desire  to  supply  deficiencies,  no  matter  for  what  cause,  in  purely 
legal  remedies. 

Another  class  of  cases  in  which  the  extraordinary  interposi- 
tion of  the  chancellor  was  called  for  was  that  of  trusts,  which 
was  the  term  used  when  the  legal  title  of  property  was  held  by 
one  man,  upon  the  confidence  that  another  should  have  the 
right  to  its  beneficial  enjoyment.  The  origin  and  progress  of 
trusts  will  be  more  particularly  noticed  hereafter.  They  were 
emphatically  "  matters  of  conscience,"  and,  therefore,  fell 
strictly  within  the  scope  of  the  chancellor's  extraordinary  juris- 
diction.^ 

'  A  small  fragment  of  equity  juris-  Chan.  Cal.  viii.;  Thomas  v.  Wyse,  Id. 

diction    had,    as    has    been    already  xiv.;  Belle  v.  Savage,  Id.  xiv;  Royall 

stated,    drifted    into    the    Court    of  v.  Garter,  Id.  cxxx. 

Exchequer,  where  it  remained  until  '  The  following  case  from  the  Year 

Stat.  5  Vict.  c.  5,  §  1.     See  ante,  page  Book  of  4  Henry  VII.,  Hilary  Term, 

5,  note  4.  pp.  4,  5,  may  be  noted  here: — 

^  See  Prospectus  of  the  Selden  So-  A  subpoena  in  Chancery  was  sued 

ciety  (founded  in  1887  for  the  pur-  for  this.     There  were  two  executors, 

pose   of   publishing   ancient   judicial  and  one  without  the  consent  of  his 

MSS.);  also,  Goddard  v.  Ingepenne,  1  companion  released  to  a  man  who  was 


12 


RISE    AND    PROGRESS    OF   THE 


[  CH.  I. 


Besides  these  two  classes  oi"  cases,  many  others  existed  in 
which  the  chancellor  interfered. 

The  following  instances,  taken  from  the  Chancery  Calendar, 
may  be  cited  as  illustrative  of  the  nature  and  extent  of  the  ex- 
traordinar}^  jurisdiction  of  the  High  Court  of  Chancery  during 
the  period  which  extended  from  the  termination  of  the  reign  of 
Edward  III.  to  the  reign  of  Henry  VIII.  Specific  ])erform  a  nee 
of  a  contract ; '  specific  delivery  of  a  ship  and  cargo  wrongfully 
detained;"-  delivery  for  cancellation  of  documents  obtained  l)y 
force  ;^  relief  against  a  forged  power  of  attorney  ;■•  injunction  to 
I'estrain  a  nuisance,  said  nuisance  being  a  stoppage  of  a  water 
course  ;  ^  f<  )r  a  n  injunction  to  stay  proceedings  at  law  ; ^  to  recover 
deeds  and  other  evidence  unjustly  retained  by  the  defendant  in 
his  possession;^  for  permission  to  go  on  with  a  suit  at  law  from 
which  the  plaintiff  had  been  restrained  by  an  injunction  ;**  be- 
cause the  plaintiff  is  disturbed  in  his  manor  by  the  defendant 
falsely  claiming  an  annuity  charged  on  the  land  ;'*  to  restrain  a 
defendant  from  the  use  of  witchcraft;'^  to  assign   dower  to  a 


indebted  to  their  testator;  and  it  was 
surmised  that  for  this  cause  the  will  of 
their  testator  could  not  be  performed, 
and  a  subpoena  was  sued  against  the 
executor,  who  released,  and  the  man 
to  whom  the  release  was  made,  etc. 

Fineux  said  that  this  was  not  reme- 
dial)le;  for  each  executor  had  entire 
power  by  himself  (a  par  luy),  and  one 
can  do  all  that  his  companion  can  do, 
and  so  the  release  made  by  him  is 
good. 

Chancellor:  No  man  may  leave  the 
Court  of  Chancery  without  a  remedj', 
and  it  is  against  reason  that  one  ex- 
ecutor should  have  all  the  goods  and 
make  a  release  alone. 

Fineux:  Sir,  if  no  one  may  leave 
without  a  remedy,  then  no  one  need 
go  to  confession;  but,  sir,  the  law  of 
the  land  is  for  many  things,  and  many 
things  are  to  be  sued  here  which  are 
not  remediable  at  common  law,  and  a 
considerable  number  are  in  conscience 
between  a  man  and  hi.t  confessor,  and 
so  is  this  thing,  etc. 


The  Chancellor  replied  (inter  alia) : 
To  make  a  remedy  for  .'^uch  thing  is 
well  done  according  to  conscience. 

^  Kymburley  v.  Goldsmith,  Ch.  Cal. 

XX. 

'  Bonodyn  v.  Arundell,  Ch.  Cal. 
xxxviii.  This  appears  to  have  been 
by  virtue  of  the  former  jurisdicti'  n  of 
the  chancellor  in  admiraltj',  long  since 
obsolete.     See  1  Spence  Eq.  703. 

^  Pickering  v.  Tongue,  Chan.  Cal. 
xliv.;  Lord  Berkley  r.  The  Countess 
of  Shrewsbur}',  Id.  Ixxvi.;  Brown  v. 
Lord  Sa3''s  Widow,  Id.  xlvii. 

*  Bief  V.  Dyer,  Id    xi. 

'  The  Burgesses  of  Ea.st  Retford  v. 
Thomas  de  Hercy,  Id.  ix  and  x. 

'  .\stel  r.  Causton,  Id.  cviii.;  Edy- 
all  !'.  Hunston,  Id.  cxiii.;  Peverell  v. 
Huse,  cxxii. 

'  Thomas  Reed  and  Emma,  his  wife, 
V.  The  Prior  of  Lauiiceston,  Id.  cxiv. 

*  Royall  V.  Garter,  Id.  cxxx. 

'  Hauley  v.  Tresilian,  Chan.  Cal. 
iii  ,  i\'. 

'''  iloigges  c.  Harry,  Id.  xxiv 


I 


CH.  I.]  HIGH   COURT    OF    CHANCERY.  18 

poor  widow  ;  ^  because  the  defendant  had  through  envy  thrown 
down  the  plaintiff's  house;-  for  relief  against  maintenance;^ 
for  quiet  possession  ;^  for  discovery  ;^  to  set  aside  a  conveyance 
obtained  from  the  complainant  when  intoxicated  ;  ^  for  tithes  : ' 
to  restrain  harassing  litigation  ;^  to  set  aside  a  release  obtained 
by  a  trick,  and  to  enjoin  the  defendant  from  using  it  in  an  ac- 
tion at  law." 

In  Geffry  Downham  v.  Heylyn  ap  Blethyn  ^°  the  defendant 
is  alleged  to  have  wrongfully  obtained  letters  of  presentation  to 
a  benefice.  For  this  there  was  a  legal  remedy  by  scire  facias  / 
but  the  complainant  seems  to  have  thought  himself  justified  in 
seeking  equitable  relief  on  the  simple  ground  of  failure  or  delay 
on  the  part  of  the  common-law  courts.  "  He  hath  sued,"  says 
the  petition,  "  for  the  same  cause  from  term  to  term  at  Not- 
tingham, York,  Winchester,  and  London,  without  success." 

Broddes worth  v.  Coke,^^  which  occurred  in  the  reign  of  Ed- 
ward IV.,  is  a  case  which  strikingly  illustrates  the  progress 
which  equitable  jurisdiction  was  making.  It  was  a  bill  setting 
forth  an  agreement  by  which  the  complainant  was  to  convey 
certain  lands,  goods,  and  tailles  '^  to  the  defendant  for  the  pur- 
pose of  making  a  settlement  with  the  complainant's  creditors, 
and  to  secure  advances  to  be  made  by  the  defendant ;  and  that 
afterwards,  upon  the  solicitation  of  the  defendant,  an  absolute 
conveyance  was  executed,  although  it  was  intended  that  the 
transaction  should  be  a  mortgage.  The  prayer  of  the  bill  was 
for  an  account  and  reconveyance.  The  bill  was  dismissed  be- 
cause, as  to  the  lands,  the  evidence  of  the  conditional  character 
of  the  conveyance  Avas  insufficient,  and  as  to  the  goods  and 
tailles  the  complainant  had  a  remedy  at  law. 

In  the  above  case  it  will  be  observed  that  many  well-known 
equitable  doctrines  are  recognized.  In  the  first  place  an  abso- 
lute conveyance  is  allegetl  to  be  a  mortgage,  and  iha  fraud  of 
the  defendant  in  taking  advantage  of  its  absolute  form,  con- 
trary to  the  true  intention  of  the  parties  and  to  his  promise,  is 

'  Danyell  v.  Belyngburgh,  Id.  xxx.  ^  Arkenden  v.  Starkey,  Id.  xxxv. 

'  Saxby  v.  Laurence,  Id.  xxxiii.  *  Freeman  v.  Poutrell,  Id.  xiii. 

'  Bell  V.  Rawe,  Id.  xxxvi.  '  Cobbethorn  v.  Williams,   Id.  ii. 

^CiiUyer  v.  Knyvett,  Id.  cxxxvii.  '"  1  Chan.  Cal.  ii.  ; 


*  Oxford  V.  Tyrell,  Id.  cxx.  "  Id.  Ixvii. 

•  Stonehouse     v.     Stanshaw,     Id.  '*  Acquittances, 
xxix 


I 


14  RISE    AND    PROGRESS    OP    THE  [CH.  I. 

set  forth  as  a  ground  for  equitable  relief.  The  defendant,  more- 
over, is,  in  substance  alleged  to  be  a  ^/'^^«^e<3  for  the  benefit-of  the 
complainant's  creditors,  and  as  such  liable  to  answer  before  a 
court  of  equity.  The  relief  sought  is  in  accordance  with  the 
redress  which  a  chancellor  of  the  present  day  would  give  in 
such  a  case  if  it  were  properly  proved,  viz.,  an  account  showing 
how  the  trust  assets  had  been  administered,  and  a  reconvey- 
ance of  so  much  of  the  real  estate  as  had  not  been  employed 
for  the  purposes  of  the  trust.  The  decree  of  the  court  is  also  in 
accordance  with  modern  principles  ;  for  when  actual  /'/a'lv/ is 
alleged  it  cannot  be  presumed,  but  must  be  proved  ;  whereas 
in  the  present  instance  the  complainant  seems  to  have  been 
unable  to  make  out  his  case.  x\nd  as  to  the  goods  and  tallies^ 
the  bill  appears  to  have  been  rightly  dismissed,  because  for 
those  the  complainant  had  a  complete  common-law  remed\\ 

9.  General  Couclusious ;  Writ  of  Subpoena ;  Pleading ; 
Evidence. 

Y\o\\\  the  above  brief  sketch  of  the  rise  of  the  jurisdiction 
of  the  English  Court  of  Chancery  three  things  are  plain  : 

First.  That,  in  the  earliest  times  of  the  English  Constitution, 
there  was  felt  a  want  of  judicial  relief  outside  and  beyond  that 
which  was  afforded  by  the  common-law  courts  of  the  King's 
Bench,  Common  Pleas  and  Exchequer. 

Second.  That  in  consequence  of  this  want,  and  for  the  pur- 
pose of  supj)lying  it,  apj)eals  were  made  to  the  king,  as  the 
head  and  fountain  of  all  justice,  sometimes  in  Parliament, 
sometimes  in  council,  and  sometimes  in  person ;  and  that  these 
applications,  from  the  circumstanc(;  of  having  been'  referred 
from  time  to  lime  lo  the  chancellor,  came  at  last  to  be  pre- 
sented to  that  official  in  the  lirst  instance;  and 

Tlih'tJ.  That  relief  was  afforded  upon  these  petitions  only  in 
those  cases  wherein  the  common-law  courts  either  could  give 
no  redress  at  all,  or  could  give  no  adequate  redress  ;  and  that 
while  in  some  of  these  cases  the  necessity  for  the  interposition 
of  a  chancellor  has  passed  away,  in  other's  the  principles  then 
enforced  have  furnished  the  foundation  upon  which  the  modein 
jurisdiction  of  courts  of  equity  has  been  built. 
'  The  prart'sx  in  equity  was  a  subpoena,  issued  by  the  chancel- 
lor, in  tlu'  naMie  of  the  king,  whereby  the  ]iarty  was  summoned 
to  ap[)ear  and  answer  the  complaint  uf  the  plaintiff,  and  abide 


CH.  T.] 


HIGH   COTRT    OF   CHANCERY. 


15 


by  the  order  of  the  court.  It  is  commoniy  supposed  to  have 
been  invented  bv  John  de  Waltham,  keeper  of  the  seal  under 
Richard  II.,  and  it  is  so  sLate<l  in  the  complaint  made  by  the 
commons  to  Henry  V.;  but  this  is  doubtless  an  error,  as  an 
instance  of  the  writ  is  found  in  ;>7  Edward  III.;  and  de  Wal- 
tham was  not  Master  of  Rolls  until  the  fifth  year  of  Richard 
II.' 

The  statement  of  the  plaintiff's  cause  of  action  in  equity  is 
called  the  hilf.  To  this  bill  the  defendant  (unless  he  could  pro- 
tect himself  by  a  demurrer  or  a  plea)  was  obliged  to  put  in  an 
answer  under  oath.  The  complainant  in  equity  was  therefore 
enabled  to  "  search  the  conscience"  of  the  defendant.  But  the 
defendant,  on  the  other  hand,  enjoyed  this  advantage,  that  his 
answer,  where  no  replication  was  filed  by  the  complainant,  was 
taken  to  be  absolutely  true  in  all  its  })arts,  whether  the  aver- 
ments which  it  contained  were  simply  in  denial  or  were  by  way 
of  confession  and  avoidance.  And  even  when  a  replication  was 
filed,  the  answer,  when  responsive  to  the  bill,  was  also  conclusive 
unless  contradicted  by  two  witnesses,  or  by  one  witness  and  cor- 
roborating circumstances.  This  fact  is  important  to  remember 
in  many  cases,  in  considering  the  relief  which  a  court  of  chancery 
affords.  Relief  may  with  propriety  be  granted,  if  based  upon 
an  admission  of  fact  by  the  defendant  himself,  when,  without 
such  a  foundation,  it  ought  with  equal  propriety  to  be  refused. 
Thus  it  will  be  seen  hereafter  that  equity  will  reform  an  instru- 
ment or  rescind  a  contract  executed  or  entered  into  under  a 
mistake  of  fact,  or  because  it  does  not  correctly  express  the  in- 
tention of  the  parties.  But  it  does  this  only  after  the  mistake 
has  been  admitted  by  the  defendant,  or  so  conclusively  ]iroved 
against  his  answer  denying  it,  that  there  can  i)e  no  doubt  what- 
ever of  its  existence.  While  th<!  relief  afforded  in  ecjuity  was 
tJi(;i'efore  extraordinary,  equally  extraordinary  precautions  were 
taken  to  prevent  that  relief  from  being  impro})ei'ly  granted. 

If  the  plaintiff  was  not  satisfied   with  the  admissions  in  the 


'  See  1  Spence  Eq.  338,  note  h. 
"The  subpoena  wa8  the  former  process 
to  bring  in  a  party  to  answer  a  charge 
before  the  king  in  council  (see  Hale 
Jurisp.,  H.  L..  pp.  7,  44),  and  was  for 
rtonio  remedial  purposes  a  usual  proc- 
p.-s  of  ijir  cou.rt  of  rhancerj-  as  early  as 


the  reign  of  Edward  III.,  when  the 
jurisdiction  of  the  court  was  beginning 
to  show  traces  of  a  partial  independ- 
ence of  that  of  the  council.  1  Ro. 
Abr.  .372."  Winters.  Ludlow, Circuit 
Ct.  U.  S.  (East.  Dist.  Pa.),  Tamphlet 
Opinion  of  Cadwaluder,  J.,  pp.  26,  27. 


16  RISE   AND    PROGRESS   OF    THE  [CH.  I. 

answer,  and  could  not  upon  those  admissions  obtain  the  relief 
which  1)6  sought,  his  proper  course  was  to  traverse  the  defend- 
ant's averments,  and  this  was  done  by  filing  a  replication.  The 
issue  or  issues  between  the  parties  were  in  this  way  arrived  ;it, 
and  the  next  step  was  the  production  of  the  evidence. 

The  manner  of  taking  evidence  in  equity  is  different  from 
that  which  is  pursued  at  law,  although  the  rules  of  evidence  are 
the  same.  At  law  the  testimony  is  taken  mod  voce,  and  publicly 
at  the  trial  of  the  cause;  in  equity,  according  to  the  ancient 
practice,  the  evidence  was  elicited  by  interrogatories  and  cross- 
interrogatories,  and  was  taken  privately  before  an  officer  of  the 
court  called  an  examiner.^  The  practice  was  for  the  party  (plain- 
tiff or  defendant)  to  file  written  interrogatories,  whereupon  the 
opposite  party  was  at  liberty  to  file  cross-interrogatories  for  the 
purpose  of  cross-examination.  Upon  these  interrogatories  and 
cross-interrogatories  the  witnesses  were  examined  privately  by 
an  examiner — no  one  but  the  witness  and  the  examiner  bein"- 
permitted  to  be  present — -and  the  answers  reduced  to  writing. 
After  the  depositions  had  thus  been  taken,  leave  to  inspect 
them,  after  a  time  fixed  by  rules  of  court,  was  given  to  the  par- 
ties, and  this  was  called  passing  publication.  After  publication 
was  passed,  no  further  witnesses  could  be  examined  without 
special  leave  of  the  court. 

This  method  of  taking  testimony  in  chancery  has  been 
changed  in  modern  times;  and  in  England  and  in  the  United 
States  a  viva  voce  examination  before  the  examiner,  or,  before  the 
court  itself,  is  now  substituted  for  the  examination  through 
interrogatories.  The  testimony,  however,  is  reduced  to  writ- 
ing, and  forms  part  of  the  record  in  the  cause.  The  chffer- 
ence  between  the  methods  of  taking  testimony  in  chancery 
and  at  law  is  the  result  of  the  difference  in  the  ends  sought 
to  be  attained.  At  law,  evidence  is  the  means  whereby  a 
jury  determines  the  issues  raised  by  the  ])leadings;  in  chancery 
it  is  the  machinery  by  which  the  chancellor  informs  himself  <^f 
the  facts  upon  which  to  Iwse  his  decree.  The  complainant  in 
his  bill  is  bound  to  set  forth  the  facts  which  are  supposed  to 
entitle  him  to  relief  ;  and  the  defendant's  answer  must  be  fully 
responsive  to  these  allegations.  If  theanswer  admits  the  state- 
ments in  the  bill,  the  facts  necessary  to  found  a  decree  then 

'  See  Adanii's  Eq.  "^  305  el  ato 


CH.  I.]  HIGH    COURT   OF   CHANCERY  17 

stand  admitted  on  the  pleadings.  If  the  answer  denies  the 
averments  of  fact  in  the  bill,  it  is,  as  already  stated,  conclusive 
in  favor  of  the  defendant  unless  contradicted  by  two  witnesses, 
or  by  one  witness  and  corroborating  circumstances.  Where, 
however,  the  testimony  is  conflicting,  the  chancellor  is  not 
obliged  to  decide  the  issue  of  fact  thus  raised,  himself,  but  may 
direct  an  issue  to  be  framed  and  sent  to  a  jury.  But  this  course 
is  only  adopted  to  infomi  (as  the  phrase  is)  the  conscience  of  the 
chancellor,  and  if  he  is  not  satisfied  with  the  finding  of  the  jury 
he  may  disregard  it.^  And  he  is  bound  so  to  disregard  it  if  the 
evidence  is  insufficient  to  warrant  a  jury  in  finding  the  fact.^  It 
results  from  this  that  in  Pennsylvania  and  other  states,  where 
common-law  forms  are  used  for  the  purpose  of  administering 
equitable  relief,  it  is  the  duty  of  a  judge,  where,  in  his  opinion, 
the  facts  proved  do  not  make  out  a  case  in  which  a  chancellor 
would  make  a  decree,  to  give  binding  instructions  to  that  effect 
to  the  jury.^  It  must  also  be  understood  that  the  court  is  not 
bound  to  send  an  issue  to  a  jury.  It  is  solely  for  the  benefit  of 
the  chancellor,  and  if  he  can,  to  his  own  satisfaction,  pass  upon 
the  evidence  without  the  assistance  of  a'jury  trial  he  may  do  so;  "^ 
for  the  right  of  trial  by  jury,  considered  as  an  absolute  right, 
does  not  extend  to  cases  of  equity  jurisdiction.^ 

10.  Progress  of  Chancellor's  Jurisdiction. 

To  return  from  this  digression.  The  jurisdiction  above  de- 
scribed was  not  exercised  without  opposition.  In  the  succes- 
sive reigns  of  Richard  11.,  Henry  IV.,  Henry  V.,  and  Henry  VI., 
petitions  were,  from  time  to  time,  presented  by  the  Conmions 
setting  forth  encroachments  u)K)n  the  common  law,  complain- 
ing that  men  were  brought  befoi-e  the  council  on  matters  which 
were  remedial  at  law,  and  (in  two  instances)  inveighing  against 
the  use  of  the  subpcena.  The  jurisdiction  of  the  chancellor 
and  the  council  was,  however,  ujoheld  by  the  sovereign;  and 
the  obnoxious  writ  was  not  abolished. 

In  the  reign  of  Henry  VIII.  a  statute  was  passed  which 
threatened  at  first  to  remove  a  large  portion  of  the  jurisdiction 

1  Henry  v.  Mayer,  6  Ariz.  114;  Id.  617;  Dorris  v.  Morrisdale  Coal 
Buckers  Irrigation  Co.  v.  Farmers'  Co.,  215  Pa.  688.  See  Kohn  v.  Mc- 
Ditch  Co.,  81  Colo.  62.  Nulta,  147  U.  S.  238. 

2  Baker  v.  Williamson,  4  Pa.  456.  *  Smith  v.  Carll,  5  J.  C.  R.  118. 

•i  Phillips   V.    Meily,    106    Pa.    586;  5  Barton  v   Barbour,  104  U.  S.  133; 

Fidehty  Ins.,  etc.,  Co.  v.  Moore,  194       Canavan  v.  Paye,  34  Pa.  Sup.  91. 

2 


18  RISE    AND    PROGRESS    OF   THE  [CH.  I. 

of  the  chancellor  by  destroying  a  species  of  property  which  had 
hitherto  been  solely  cognizable  in  his  court,  namely  the  Use. 

B\^  the  celebrated  Statute  of  Uses  (27  Henry  YIIL,  c.  10)  this 
estate  in  the  land  (the  use),  which  had  hitherto  been  recognized 
solely  in  a  court  of  equity,  was  clothed  with  the  legal  title,  and 
thereby  rendered  a  proper  subject  for  the  recognition  of  a  com- 
mon-law court.  The  nature  of  the  use  and  the  effect  of  the 
statute  will  be  explained  hereafter.  It  will  be  sufficient  to  say,  at 
present,  that  the  threatened  blow  at  the  jurisdiction  of  chancery 
was  averted  by  an  ingenious  construction  of  the  statute,  whereby 
these  equitable  estates  were  rescued  from  destruction,  and  their 
control  still  retained  in  the  court  where  thev  had  originated. 

In  the  reign  of  James  I.,  another  attempt  was  made  to  inter- 
fere with  the  jurisdiction  of  the  chancellor.  An  action  was 
tried  before  Coke  in  wiiich  the  plaintiff  lost  the  verdict  in  con- 
sequence of  one  of  his  witnesses  being  artfully  kept  awa}^  lie 
then  had  recourse  to  chancery  to  compel  the  defendant  to 
answer  on  his  oath,  which  the  latter  refused  to  do,  and  was 
committed  for  contempt.  Coke  then  had  indictments  preferred 
against  the  parties  to  the  bill,  their  counsel  and  solicitors,  for 
suing  in  another  coui't  after  judgment  obtained  at  law,  Avhich 
was  alleged  to  be  contrary  to  the  statute  ol  prcermmire. 

The  matter  was  referred  to  the  king,  whose  decision  w^as  in 
favor  of  the  lord  chancellor.^ 

From  that  time  to  the  present  the  jurisdiction  of  the  Court 
of  Chancery  has  been  free  from  interference,  and  has  expanded 
into  a  Avise  and  comprehensive  system  of  justice.  This  system 
has  been  perfected  by  the  hands  of  many  illustrious  men  who 
have  sat  upon  the  woolsack  or  at  the  Rolls — among  whom  are 
to  be  mentioned  Nottingham,^  Hard wicke,  Eldon  and  Grant,  St. 
Leonards,  Westbury,  Selborne  and  Jessel. 

Courts  of  common  law,  in  modern  times,  have  afforded  relief 
in  many  cases  which  formerl}'  fell  under  the  cognizance  of 
chancery  alone  ;  but  the  latter  tribunal  has  not,  on  that  account, 
abandoned  the  jurisdiction  which  it  had  acquired,  and  the 
suitor  has  now,  not  unfrequently,  two  tribunals  open  from 
which  he  may  obtain  redress. 

'  Earl  of  Oxford's  Case,  1  Ch.  Rep.  may  say,  in  this  court,"  by  Sir  R. 

1;  2  Lead.  Cas.  Eq.  *601   (1291,  4th  Pepper  Arden,  M.  R.,  in  Brydges  v. 

Am.   ed.).  Brydges,  3  Ves.  127. 

*"The  father  of  equity  almost,  I 


I 


CH.  I.]  HIGH    COURT    OF    CHANCERY.  19 

The  choice  between  the  two  tribunals  in  England  has  been 
of  late  years  greatly  affected  in  favor  of  the  Court  of  Chancery, 
by  reason  of  the  vast  improvements  which  have  been  intro- 
duced in  the  constitution  of  the  equity  courts  and  the  practice 
therein.  The  jurisdiction  formerly  administered  by  the  chan- 
cellor alone  came,  by  various  statutes,  to  be  vested  in  eight 
judges,  viz.,  the  Lord  High  Chancellor,  tAvo  Lords  Justices  of 
Appeal,  the  Master  of  the  Rolls,  three  Vice-Chancellors,  and 
the  Chief  Judge  in  Bankruptcy;  and  many  improvements 
were  introduced  tending  to  the  prompt  and  economical  admin- 
istration of  justice. 

11.  Supreme  Conrt  of  Judicature  Act. 

The  system,  however,  of  two  distinct  sets  of  courts  admin- 
istering different  and,  sometimes,  conflicting  rules  at  last  ceased 
to  find  favor  in  England.  On  the  fifth  of  August,  1873,  an 
Act  of  Parliament  was  passed  under  the  title  of  the  "  Supreme 
Court  of  Judicature  Act,"  wherebv  the  constitution  of  the 
English  courts  was  radically  changed.  By  this  Act  (which,  it 
was  declared,  should  come  into  operation  on  the  second  day  of 
November,  1874)  it  was  provided  that  the  Court  of  Chancery, 
the  Court  of  Queen's  Bench,  the  Court  of  Common  Pleas,  the 
Court  of  Exchequer,  the  High  Court  of  Admiralty,  the  Court 
of  Probate,  the  Court  for  Divorce  and  Matrimonial  Causes,  and 
the  London  Court  of  Bankruptcy  should  be  united  and  consoli- 
dated, and  should  constitute  one  Supreme  Court  of  Judicature, 
to  consist  of  two  divisions  under  the  name  of  "  Her  Majesty's 
High  Court  of  Justice,"  and  "  Her  Majesty's  Court  of  Appeal." 
It  was  further  provided  that  the  judges  of  the  High  Court  of 
Justice  should  not  exceed  twenty-one  in  number ;  and  that  the 
Court  of  Appeal  was  to  consist  of  five  ex  officio  judges,  and  so 
many  ordinary  judges  (not  exceeding  nine  at  any  one  time)  as 
might  from  time  to  time  be  appointed.  The  ex  officio  judges 
were  declared  to  be  the  Lord  Chancellor,  the  Lord  Chief  Justice 
of  England,  the  Master  of  tlie  Polls,  the  Lord  Chief  Jnstice  of 
the  Common  Pleas,  and  the  Lord  Chief  Baron  of  the  Ex- 
chequer.^    The  act  further  ]irovided  that,  if  the  plaintiff  claims 

*  By  Statute  of  44  &  45  Vict.  c.  68  Justice  shall  be  an  ex  officio  judge  of 

(1881),  the  President  for  the  time  be-  the  Court  of  Appeal;  and  so  also  by 

ing  of  the  Probate,  Divorce,  and  Ad-  Statute  of  54  &  55  Vict.  c.  53  (1891), 

miralty  Divisions  of  the  High  Court  of  shall  the  Ex-Lord  Chancellor. 


20  RISE    AM)    TROGRESS    OF   THE  [CH.  I. 

any  equitable  estate,  or  riglit,  or  relief  upon  an}^  equitable 
ground,  or  equitable  relief  upon  a  legal  right,  the  said  couits 
and  every  judge  thereof  should  give  the  same  relief  as  ought  to 
have  been  given  by  the  Court  of  Chancery  before  the  passing 
of  the  Act ;  and  that,  if  a  defendant  claims  any  equitable  estate 
or  riglit,  or  relief  upon  any  equitable  ground,  or  alleges  any 
ground  of  equitable  defence,  the  said  courts  and  every  judge 
thereof  should  e-ive  the  same  effect  to  everv  estate,  rig^ht,  or 
ground  of  relief  so  claimed,  and  to  every  equitable  defence  so 
alleged,  as  the  Court  of  Chancery  ought  to  have  given  in  pro- 
ceedings in  that  court  before  the  passing  of  the  Act.  Other 
provisions  also  exist,  whereby  equitable  titles  and  rights  are 
directed  to  be  recognized,  and  equitable  remedies  substantially 
applied.' 

By  Statute  of  88  and  39  Vict.  c.  77  (1875),  the  constitution 
of  the  Court  of  Appeal  w  as  changed,  and  that  tribunal  was 
made  to  consist  of  the  five  ex  officio  judges  already  named  and 
as  many  ordinary  judges,  not  exceeding  three,  as  should  be, 
from  time  to  time,  appointed.  By  the  Act  of  1876  (39  and  40 
Yict.  c.  59)  three  additional  judges  of  appeal  may  be  appointed, 
and  an  appeal  lies  from  the  Court  of  Appeal  to  the  House  of 
Lords.  The  positions  of  Lord  Chief  Justice  of  the  Common 
Pleas  and  Lord  Chief  Baron  of  the  Exchequer  are  now  abol- 
ished. 

It  will  be  observed  that,  bj^  the  provisions  of  these  Acts,  the 
principles  of  justice,  as  administered  in  the  Court  of  Chancerv, 
were  made  to  pervade  the  whole  mass  of  English  jurisprudence  ; 
and  that,  in  fact,  by  the  rules  growing  out  of  those  principles, 
all  questions  of  justice  in  England  are  hereafter  to  be  deter- 
mined. 

It  is  plain,  from  the  above  sketch  of  the  rise  of  the  Court  of 
Chancery,  that  the  term  "  equity,"  as  descriptive  of  an  impor- 
tant body  of  English  law,  has,  as  stated  above,  an  essentially 
technical  signification,  and  that  its  precise  and  definite  mean- 
ing when  so  used  is  clearly  distinguishable  fi'om  that  which  it 
bears  in  its  ordinary  acceptation.  Thus,  "  equity  "  may  be  in 
one  sense  synonymous  with  natural  i-ight  and  justice;  but 
neither  Courts  of  Chancery  iior  courts  of  law  proff»ss  to  afford 
relief  in  all  cases  in  which  r(>dress  would  be  pr(»scribed  by  rules 

*  See  Wilson's  Judicature  Acts,  pp.  1  to  169;  and  IS  Am.  Law  Rev.  575. 


CH.  I.]  HIGH    COURT    OF   CHANCERY.  21 

of  charity,  generosity  or  benevolence,  oi*  by  the  dictates  of  a 
nice  sense  of  honor,  and  yet  the  rules  of  benevolence  and  the 
principles  of  honor  are  included  within  the  scope  of  the  terms 
"  right "  and  "  justice,"  and  may  therefore  fall  within  one  mean- 
ing of  the  terra  "  equity."  On  the  other  hand,  courts  of  com- 
mon law  recognize  "  equity  "  in  a  certain  sense.  Thus,  when 
the  "  equity  "  of  a  statute  is  spoken  of,  or  a  certain  case  is  said 
to  be  within  that  "  equity,"  or  the  like,  the  meaning  intended 
to  be  conveyed  is  simply  that  a  sound  and  fair  interpretation 
of  the  law  must  be  given — an  interpretation  based  not  upon  its 
letter  alone,  but  upon  its  spiiit  and  true  sense.  This  method 
of  interpreting  statutes  is  one  of  the  fundamental  rules  for 
their  construction,  and  obtains  in  all  courts — in  those  of  com- 
mon law  just  as  much  as  in  those  of  equity. 

The  meaning  of  the  word  "  equity  "  then,  as  used  in  its  tech- 
nical sense  in  English  jurisprudence,  comes  back  to  this,  that  it 
is  simply  a  term  descriptive  of  a  certain  field  of  jurisdiction 
exercised,  in  the  English  system,  by  certain  courts,  and  of 
which  the  extent  and  boundaries  are  not  marked  by  lines 
founded  upon  principle  so  much  as  by  the  features  of  the 
original  constitution  of  the  English  scheme  of  remedial  law 
and  the  accidents  of  its  development. 

12.  Principles  of  Equity  adopted  in  United  States. 

It  has  been  already  stated  that  the  principles  of  justice,  as 
administered  by  the  High  Court  of  Chancery  in  England  in 
the  exercise  of  its  extraordinar}'  jurisdiction,  iiave  been  adopted 
in  nearly  all,  it  would  not  be  too  much  to  say  in  all,  of  the 
United  States.  AVIiile  this  is  true,  it  must  be  remembered 
that  the  practical  application  of  these  principles  through  the 
machinery  of  the  courts  has  varied  very  much  throug-hout  the 
Union,  and  has  received  many  modifications  at  different  periods. 

13.  Jurisdiction  of  Federal  Courts. 

The  federal  courts  have  equity  powers  within  the  scope  of 
the  jurisdiction    conferred    upon    them   by  the  Constitution.^ 

By  the  Constitution  of  the  United  States-  it  is  provided 
that  the  judicial  power  of  the  federal  government  shall  extend 

»  Neves  v.  Scott,  13  Howard,  270;      inson    v.    Campbell,    3    Wheat.    223; 
Boyle  V.  Zacharie,  6  Peters,  658;  Rob-      Noonan  v.  Lee,  2  Black,  509. 

'  Art.  III.,  aec.  2. 


22  RISE    AND    PROGRESS    OF   THE  [CH.  I. 

to  ail  cases  at  law  or  in  eqn.iiij  aiising  under  the  Constitution 
and  laws  of  the  United  States,  aud  treaties  made  or  which 
shall  be  made  under  their  authority.  This  jurisdiction,  as  ex- 
plained in  I  he  judiciary  act,  is  not  to  be  exercised  in  either  oi 
the  courts  of  the  United  States  in  any  case  where  a  plain,  ade 
quate,  and  complete  remedy  may  be  had  at  law,^  but  tliis 
enactment  is  declaratory  merely  of  the  existing  law.^  It  has 
also  been  said  that  the  practice  of  the  English  High  Court  of 
Chancery  forms  the  basis  of  the  equity  practice  of  the  courts 
of  the  United  States.^ 

Not  only  are  both  the  jjr'mclples  and  practice  of  the  High 
Court  of  Chancery  recognized  in  the  administration  of  equity 
in  the  federal  courts,  but  the  administration  of  chancer}-^  doc- 
trines under  chancery  forms  is  uniform  throughout  the  Union. 
"At  the  time  the  Constitution  was  formed,  the  distinction 
between  law  and  equity  as  known  in  the  country  from  whence 
our  ancestors  came  was  recognized  by  the  Constitution  ;  and 
the  courts  of  the  United  States  have  uniformly  held  that  the 
rules  of  decision  in  equity  cases  were  the  same  in  all  the  states, 
and  they  are  the  equity  law  which  we  derived  from  England."  * 
It  is,  moreover,  settled  law  that  the  courts  of  the  United  States 
do  not  lose  any  of  their  equitable  jurisdiction  in  those  states 
where  no  such  courts  exist,  but,  on  the  contraiy,  are  bound  to 
administer  equitable  remedies  in  cases  to  which  they  are  appli- 
cable, and  which  are  not  adapted  to  a  common-law  action. 
Equitable  titles,  therefore,  though  allowed  to  be  set  up  in  state 
courts,  in  common-law  suits,  cannot  be  recognized  in  such  suits 
in  the  federal  courts.  They  must  be  made  the  subject  of  suits 
in  equity.^ 

14.  Changes  of  Procedure  in  some  States. 

After  the  separation  of  the  American  colonies  from  the 
British  Crown,  the  constitutions  of  many  of  the  states  provided 

1  Act  of  1789,  §  16  ;  1  Stat,  at  Smith  v.  Am.  Nat.  Bank,  22  C.  C. 
Lari-e,  82;    Revised  Statutes,    §  723,      A.  3GS. 

p.  137.  '  Smith  v.  Burnham,    2    Sum.  612, 

2  Boyce  v.   Grundy,  3    Pet.   210  ;      625. 

Ot'h-ichs   V.    Spain,     15    Wall.     228  ;  *  Curtis  on  the  Jurisdiction  of  the 

Grand  Chute   v.  Winegar,    Id.    376  ;  United  States  Courts,  13  ;  Xeves   t;. 

Hunt  V.  Danforth,  2  Curt.  592.     See  Scott,  13  How.  26S. 
Thompson  z).  R.  R.  Co.,  6  Wall.  137  ;  Mlidings    v.    Johnson,    128    U.  S 

Buzard  v.  Houston,  119   U.  S.  352  ;  217 


CH.  I.]  HIGH    <'(>1:RT   of   CHANCERY.  23 

for  the  establishment  of  courts  of  chancery,  after  the  model  of 
the  High  Court  of  Chancery  in  England.^  Such  was  the  case 
in  New  York,  New  Jersey,  Maryland,  Delaware,  South  Caro- 
lina, and  also  Michigan. 

In  other  states,  as  in  Pennsylvania,  there  were  no  separate 
courts  of  chancery,  and  the  equity  ])0\vers  conferred  upon  the 
common-law  courts  were  exceedingly  limited.  Changes  were, 
however,  made  from  time  to  time  in  most  of  the  states.  In 
1840  the  state  convention  which  revised  the  Constitution  of 
New  York  abolish(3d  tiie  courts  of  chancery,  and  conferred 
upon  the  Supreme  Court  a  general  jurisdiction  in  law  and 
equity ;  while,  on  the  other  hand,  in  Pennsylvania  enlarged 
equity  powers  were  conferred  upon  the  courts  in  obedience  to 
the  suggestions  contained  in  the  report  of  the  committee  to  re- 
vise the  civil  code,  made  in  1835. 

The  example  of  New  York,  in  abolishing  the  distinction  be^ 
tween  legal  and  equitable  forms  of  action,  and  substituting  a 
general  form  of  civil  action  in  their  place,  has  been  followed 
by  very  many  of  the  western  states  of  the  Union,  and  even 
the  state  of  South  Cai'olina,  so  justly  celebrated  for  the  learn- 
ing and  ability  of  its  chancellors,  has  given  in  its  adherence  to 
the  new  system,  and  has  adopted  a  code  whereby  separate 
courts  of  equity  are  abolished,  and  all  civil  injuries  are  re- 
dressed by  one  form  of  action.^ 

But  even  in  those  states  where  this  sweeping  change  has 
been  effected  it  has  still  been  found  necessary  to  make  provi- 
sions for  certain  equitable  remedies,  the  absence  of  which  would 
inevitably  result  in  a  failure  of  justice  in  many  cases.  Thus, 
injunctions  and  writs  of  ne  exeat  are  issued,  specific  ])erforin- 
ance  enforced,  and  receivers  appointed  upon  applications  not 
made  according  to  the  course  and  practice  of  chancery,  but 
under  common-law  or  statutory  forms  ;^  and  relief  which  falls 

'  A  court  of  chancery  had  existed  Courts  of  chancery  had  also  existed 

for  a  short  time  in  Pennsylvania  be-  prior  to   the   Revolution  in   most  of 

tween  the  years  1720  and  1739.    See  the  colonies.      See  Laussat's   note  to 

article  by  Law.  Lewis^  Jr.,   in  Hist.  1  Fonblanque's  Equity,  13,  article  in 

Soc.  Mag.  for   July,   1881,    where    a  18  Am.  Law  Rev.  226,  and   Story's 

case  in   Chester    county    is    cited   in  Equity  Jurisprudence,  §  56. 

which  a  court  sitting  as    a   court   of  '  Rev.  Stats,  of  1873,  p.  586. 

equity    reversed    its  own   judgment  '    This   is  the     case    in    California 

given  as  a  court  of  law.    See  Rawle's  (Wood's    Dig.     168,    933;     Parker's 

Essay  on    Equity    in  Pennsylvania.  Sup.  §  9172  ;  Sts.    of    1885,    p.  94)  ; 


24  RISE   AM)    PROGRESS   OF  THE-  [CH.  I. 

under  the  quia  timet  jurisdiction  of  equity  is  afforded  through 
the  medium  of  a  petition  or  complaint.^ 

15.  Classification  of  states. 

In  considering  this  sul)ject,  therefore,  the  states  of  the  Union 
may  be  conveniently  divided  into  three  groups  or  classes. 

The  first  embraces  those  states  wherein  distinct  courts  of 
chancery  exist;  and  includes  New  Jersey,  Delaware,  Tennessee, 
Mississippi,  and  Alabama. 

The  second  class  is  composed  of  those  states  wherein  chan- 
cery powers  are  exercised  by  judges  of  common-law  courts,  but 
according  to  the  course  and  practice  of  chancery.  These  states 
are  Maine,  New  Hampshire,  Vermont,  Massachusetts,  Rhode 
Island,  Connecticut,  Pennsylvania,  Maryland,  Virginia,  West 
Virginia,  North  Carolina,  Kentucky,  Illinois,  Texas,  Florida, 
Michigan,  Iowa,  Arkansas,  Oregon,  North  Dakota,  South  Dakota, 
Washington,  and  Colorado. 

The  third  class  of  states  includes,  it  is  believed,  all  those 
which  have  not  been  mentioned  as  falling  within  the  other 
two  classes.  In  these  states  the  distinction  between  actions  at 
law  and  suits  in  equity  has  been  abolished;  but,  as  has  been 
already  stated,  certain  equitable  remedies  are  still  administered 
under  the  statutory  form  of  the  civil  action.' 

Whatever  modifications  have  been  introduced  by  statute  into 
the  forms  of  relief,  the  system  of  justice  which  is  administered 

New  York  (Code  Civ.  Proc.  §  .3339);  jurisdiction  to  declare  a  marriage 
Ohio  (Code,  §3);  South  Carolina  valid  or  void  by  reason  of  the  sanity 
(Rev.  Stats,  of  1S73,  .586);  Missouri  or  lunacy  (as  the  case  may  be)  of  one 
(Wagner's  Dig.  1S72,  909  and  1028) ;  of  the  contracting  parties,  while  ca- 
VVisconsin  (Taylor's  Statutes,  1416);  pable  of  being  exerci.sed  in  England, 
Kansas  (Code,  Chapter  80,  Article  cannot,  not  having  been  conferred 
II.,  §  10);  Minnesota  (Chap.  66  of  by  statute,  be  taken  advantage  of 
the  Code,  Title  I.,  §  1);  Indiana  by  Pennsylvania  courts.  Pitcairn 
(Code,  Part  II.,  Chap.  I.,  Art.  I.).  r.  Pitcairn,  201  Pa.  368.  It  is  more- 
Even  in  Pennsylvania,  where  the  over  established  in  that  state,  for  the 
doctrine  of  equitable  relief  under  same  reason,  that  no  advisory  or  de- 
common-law  forms  is  most  firmly  es-  claratory  jurisdiction  can  be  exer- 
tablished,  complete  redress  is  some-  cised  by  its  courts.  Morton's  Estate, 
times  only  attainable  by  bill  in  chan-  201  Pa.  269. 

eery.     See  Treftz   v.   King,    74   Pa.  i  Statutes  of   California,    Parker's 

350.    But  it  is  to  be  observed  that  in  Supplement,  §  9172. 
this  state,  the  equitable  jurisdiction  2  The  distinction   between  actions 

is  not  general;  it  is  limited  to  cer-  at  law  and  suits  in  equity  abohshed  in 

tain   enumerated   subjects.     It   has,  Alaska  Pacific  Coast  Co.  v.  Brown,  2 

therefore,  been  recently  held  that  the  Alaska,  621. 


CH.  1.]  HIGH   COURT   OF   CHANCERY.  25 

in  courts  of  equity  must,  of  necessity,  enter  into  the  laws  of 
every  civiiizetl  state  whose  institutions  are  derived,  directly  or 
indirectly,  fi-om  England  ;  and  no  state  in  the  Union,  however 
widely  it  may  depart  from  the  practice  of  the  Englisli  High 
C-ourt  of  Chancery,  can  discard  the  principles  upon  which  its 
extraordinary  jurisdiction  is  founded,' 

'   See  German-Am.  Tit.  Tns.  &  Tr.  mon-law suit,  conducted  on  equitable 

Co.  V.  Shallcross,  147  Pa.  485,  for  an  principles,    failed,  and    a  resort  to  a 

example  of  a  case  in  which  anattempt  bill  in  chancery  was  necessary, 
to  get   an  equitable  relief  in   a  com- 


20     GENERAL   OUTLINE    OF    EQUITABLE   JURISDICTION.    [CH.  II. 


CHAPTER  II. 

GENERAL    OUTLINE    OF    EQUITABLE    JURISDICTION. 

16.  Three  great  divisions  of  equity.  29.  Specific  performance. 

17.  Equitable  titles;  example.  30.  Injunctions. 

18.  Equitable  rights;  example.  31.  Re-execution;  Reformation;  Re- 

19.  Equitable  remedies;  example.  scission;  Cancellation. 

20.  Subjects  of  equitable  juri.sdiction;  32.  Account;  Dower;  Partition;  Con- 

Trusts,  fusion  of  boundaries;  Rent. 

21.  Mortgages.  33.   Partnership  bills;  Creditors' bills; 

22.  Assignments.  Administration  suits. 

23.  Accident   and    Mistake.  34.  Infants,  idiots,  and  lunatics. 

24.  Fraud.  35.  Discovery;  Commissions  to  exam- 

25.  Notice;   Estoppel;  Election.  ine  witnesses  abroad;  Perpetua- 

26.  Conversion.  tion    of    testimony;    Examina- 

27.  Adjustment;    Set-off;    Contribu-  tions  de  bene  esse. 

tion;     Subrogation;     Exonera-      36.   Bills  quia  timet;  Receivers;  Writs 
tion;  Marshalling.  of   ne   exeat;   Writs   of   suppli- 

28.  Equitable  liens.  cavit. 

16.  Three  great  divisions  of  Equity. 

It  is  tru.sted  that  the  sketch  already  given  of  the  rise  of 
the  High  Court  of  Chancery  in  England,  and  of  the  reasons  for 
its  assuming  the  exercise  of  its  extraordinary  jurisdiction,  has 
made  it  apparent  that  the  sul)jects  or  heads  of  chancery  juris- 
diction are  susceptible  of  division  into  three  general  classes  : 
the  lirst  embracing  those  cases  in  which  common-law  courts 
do  not  recognize  a  title ,'  the  second,  those  in  which  the  com- 
mon-law courts  do  not  recognize  a  rujht ;  and  the  third,  those 
cases  in  which  the  common-law  courts  cannot  enforce  a  riglit, 
or  cannot  enforce  it  so  as  to  do  complete  and  exact  justice } 

Tt  will  be  convenient  to  give  an  illustration  of  each  of  these 
general  subdivisions  of  equity. 

17.  Equitable  Titles ;  Example. 

Equity  recognizes  titles  which  were  entirely  ignored  at  com- 
mon hiw. 

Thus,  for  example,  it  is  well  known  that  a  chose  in  actloji 

'See  Spence  Eq.,  Part   II.,  Book  III.,  Chap.  1. 


CH.  II.]    GENERAL    OUTLINE    OP    EQUITABLE    JURISDICTION.     27 

could  not  be  assigned  ;it  common  law.  The  assignee  had  no 
standing  whatever  in  a  common-law  court ;  the  assignment 
was  null;  he  simply  took  no  title  whatever.  In  equity,  how- 
ever, whenever  the  assignment  was  founded  upon  a  valuable 
consideration,  and  when  it  would  therefore  be  unfair  to  allow 
a  person  to  pay  value  without  getting  a  substantial  equivalent, 
an  entirely  new  title  was  created,  distinct  from  and  independent 
of  the  legal  title,  which  still  remained  in  existence,  but  was 
held  by  the  assignor  solely  for  the  benefit  of  the  assignee. 
The  method  of  asserting  this  ecpiitable  title  was  by  allowing 
the  assignee  to  use  tli(3  name  of  the  assignor  in  an  action  at 
law  to  I'ecover  the  chose,  and  by  restraining  the  latter  from  any 
interference  in  this  suit.  If  the  assignor  refused  to  allow  his 
name  to  be  used,  or  any  other  reason  existed  which  called  lor 
the  direct  inter])osition  of  chancery,  the  assignee  was  entitled 
to  lile  a  bill  in  equity,  and  his  title  to  the  chose  was  immediately 
recognized  and  enforced.^ 

Here,  then,  is  a  case  in  which  equity  creates  and  enforces  a 
title  not  known  at  laAV. 

18.  Equitable  Kights  ;  Example. 

Again:  the  enjoyment,  devolution,  and  transmission  of  legal 
titles  are  sometimes  controlled  by  equitable  doctrines,  so  that 
the  rights  of  parties  thereto  may  be  very  different  in  courts  of 
equity  from  those  to  which  a  court  of  law  would  give  eff».'ct. 
For  instance,  a  guardian  purchases  property  of  his  ward  the  day 
after  the  latter  attains  his  majority.  Here  is  a  transaction  by 
which  the  legal  title  to  the  property  passes,  and  after  which  the 
rights  of  the  parties,  at  law,  are  fixed.  But  equity  views  such 
a  bargain  with  a  jealous  eye;  and,  in  fact,  has  laid  down  the  im- 
perative rule  that  it  cannot  stand  if  the  ward  witliin  a  reason- 
able time  chooses  to  disaffirm  it.  In  equity,  tlierefore,  tlie 
ward  may  obtain  a  restitution  of  the  jiroperty  (upon  the  return 
of  the  consideration),  not,  indeed,  because  in  chancery  any  new 
title  is  created,  but  .because  by  the  application  of  an  equitable 
doctrine  the  legal  title  is  taken  away  from  the  person  who  at 
law  would  be  entitled  to  hold  it,  and  restored  to  him  who  in 
good  conscience  should  be  the  rightful  owner. 

19.  Equitable  Remedies  ;  Example. 

Of  the  third  general  class  of  cases  in  which  equity  affords 
1  Trexler  v.  Kuntz,  36  Pa.  Sup.  352. 


28   GENERAL   OUTLTN  K    oV    EQinTATUJ-:    .1  ITliTSDrOTroX.      [OH.  TT. 

relief — those,  ii;mielv,  in  wliicii  a  coiift  of  law  i"ec()»2-iiizes  ai'iiiliL 
but  cannot  enforce  it — in  <jtlier  words,  those  cases  whicii  fall 
under  the  head  of  equitable  remedies — the  doctrine  of  specific 
))erformance  of  contracts  ma}"  be  taken  as  an  illustration.  At 
law,  if  A.  sells  B.  a  piece  of  real  estate,  the  legal  title  remains 
in  the  former  until  a  deed  is  executed  and  delivered  ;  and  if  he 
refuses  to  complete  the  sale,  no  power  at  conniion  law  can  com- 
pel him  to  convey.  H.'s  right  at  common  law  (supposing  the 
contract  to  he  executed  in  such  a  way  as  to  be  binding)  is  simply 
a  riii'ht  of  action  on  the  contract  bv  which  damages  mav  ])e  re- 
covered.  Now,  even  if  the  case  should  liai)pen  to  be  one  in 
which  13.  may  recover  damages  in  a  common-law  action  for  the 
loss  of  his  baro^ain ,'  it  is  obvious  that  his  legal  remedy  is 
nevertheless  wholly  inadequate,  and  affords  no  substantial  re- 
dress, lie  has  a  right  to  the  property;  he  has  a  right  which 
the  law  recognizes,  because,  if  the  property  is  destroyed,  the 
loss  falls  on  him  ;  but  the  common  law  is  powerless  to  give  him 
the  tliinii-  itself  for  which  he  has  bargained ;  it  can  only  give 
him  damages. 

But  in  equity  he  has  complete  relief.  Upon  a  bill  being 
filed,  and  a  proper  case  nuule  out,  the  complainant  is  entitled 
to  a  decree  that  the  defendant  do  convey  to  him  the  proj^ei'ty 
in  question  on  or  before  a  certain  day  ;  and  if  the  defendant 
isobeys  the  decree,  his  compliance  therewith  is  enforced  by  an 
attachment — in  other  words,  he  is  committed  to  prison  until 
he  executes  the  deed. 

It  will  be  observed,  therefore,  that  the  general  field  of  the 
jurisdiction  of  courts  of  chancery  is  susceptible  of  three  great 
divisions,  viz.,  I.  Equitable  Titles;  II.  Equitable  Rights,  or 
Equities;  and  III.  Equitable  llemedies. 

It  will  be  convenient,  however,  not  only  to  point  out  the 
above  general  subdivisions,  but  to  give  also  a  brief  summaryj 
or,  as  it  were,  catalogue,  of  the  subjects  of  equitable  jurisdiction. 

20.  Subjects  of  Equitable  Jurisdiction  ;  Trusts. 

The  first  and  perhaps  the  most  inq)ortant  of  these  subjects  is 
that  of  Trusts. 

A  Trust  is  the  beneficial  title  or  ownership  of  property  of 

*  For  a  discussion  of  the  authorities      See  also  Bowser  v.  Cessna,  62  Pa.  148; 
upon  this  interesting  point,  See  1  Sug.      Thompson  v.  Sheplar,  72  Id.  160. 
V.  4  P.  542  (8th  Am.  ed.  by  Perkins). 


c 


CH.  II.]     GENERAL    OUTLINE    OF    EQUITABLE   JURISDICTION.    29 

which  the  legal  title  is  in  another.  The  person  in  whom  the 
legal  title  is  vested  is  called  the  trustee,  and  the  person  for 
whose  benefit  the  trust  exists  is  called  the  ce^inl  que  trust.  So 
far  as  the  duties  of  the  trustee  are  concerned,  trusts  may  be 
divided  into  active  or  special,  and  ])assive  or  simple  trusts.^  An 
active  trust  is  one  in  wliich  the  trustee  has  some  active  duties 
to  perform,  such  as  to  collect  the  rents  and  profits  of  an  estate, 
and  pay  the  net  income  to  a  married  woman  for  her  separate 
use;  or  to  pay  debts  or  legacies,  or  the  like.  A  passive  trust 
is  one  in  which  the  trustee  is  the  mere  holder  of  the  legal  title, 
which  he  is  compelled  toconve}'  to  the  cestui  que  trust  whenever 
he  is  called  upon  to  do  so.  Trusts  are  also  either  executed  or 
executory.  An  executed  trust  is  one  in  which  the  estates  and 
interests  in  the  subject-matter  of  the  trust  are  completely 
limited  and  defined  by  the  instrument  creating  the  trust,  and 
require  no  further  instruments  to  complete  theuL  An  execu- 
tor}^ trust  is  where  the  instrument  creating  the  trust  is  intended 
to  be  provisional  only,  and  further  conveyances  are  contem- 
plated in  accordance  with  the  terms  of  the  trust,  and  wdiereby 
the  same  may  be  effectually  carried  out.^ 

Trusts  may  also  take  their  name  from  the  purposes  for  which 
they  are  created,  e.  ^.,  trusts  may  be  either  private  or  public 
trusts  ;  they  may  be  either  trusts  lawful  or  trusts  unlawful. 

The  division  of  trusts,  however,  which  is  generally  made  for 
the  purposes  of  a  treatise  on  equity,  is  one  based  upon  the  man- 
ner in  which  trusts  are  created,  and  it  is  plain  that  this  may 
be  in  one  of  two  ways — either,  first,  by  act  of  party,  or,  second, 
by  act  of  law.  Trusts,  as  respects  their  mode  of  creation,  are 
therefore  divisible  into  express  and  implied  trusts;  and  implied 
trusts  are  in  this  treatise  again  subdivided  into  resulting  trusts 
and  constructive  trusts. 

Express  trusts,  as  a  general  rule,  may  be  created  by  jiarol ; 
and  no  particular  form  of  language  is  necessary,  but  any  words 
which  sufficiently  indicate  intention  will  be  competent  to  create 
a  trust.  Trusts  in  respect  to  real  estate  are,  however,  recjuired 
by  the  Statute  of  Frauds  in  England  to  be  in  writing ;  and 
similar  statutes  have  been  passed  in  nearly  all  of  the  United 
States. 

Express  trusts  mav   be  created    either  bv  direct   fiduciary 

•  Lewin  (10th  Eng.  ed.),  16.  '  Lewin  (10th  Eng.  ed.),  120. 


30    GENERAL    OUTLINE    OF    EQUITABLE   JURLSDICTION.     [CH.  TI. 

expressions,  or  l)y  precatory  words,  or  by  words  indicating 
that  a  power  is  to  be  used  in  trust. 

Of  trusts  by  direct  tiduciary  expressions  nothing  need,  at 
present,  be  said  in  explanation. 

Trusts  by  precatory  words  arise  wliere  a  testator  has  not  used 
words  of  direct  command,  but  expressions  of  entreaty  or  recom- 
mendation, which  are  construed,  for  the  purpose  of  effectuating 
intention,  to  be  equivalent  to  imperative  words. 

Powers  in  trust  are  those  powers,  the  exercise  of  which  is  not 
left  to  the  discretion  of  the  donee  of  the  power,  but  which  are 
considered  as  obliffatorv  because  thev  are  to  be  exercised  for 
the  benefit  of  some  third  persons,  atul  the  duty  of  the  donee  of 
the  power  is  therefore  looked  upon  as  a  trust, 

A  resulting  trust  may  arise  in  several  ways,  one  of  the  most 
usual  being  where  a  purchase  is  made  and  the  money  paid  by 
one  man,  and  the  title  to  the  property  is  taken  in  the  name  of  an- 
other. Here  the  law  im})lies  a  trust,  on  the  part  of  the  latter, 
to  hold  the  legal  title  for  the  benefit  of  the  actual  purchaser. 
So,  too,  where  there  is  a  gift  by  will  to  trustees  for  a  particular 
purpose  wiiicli  fails,  a  trust  results  for  the  benefit  of  the  heir-at- 
law  or  next  of  kin,  according  as  the  gift  is  of  real  or  personal 
estate.  The  other  cases  of  resulting  trusts  are  those  in  which 
the  trustee  or  other  fiduciary  buys  property  in  his  own  name, 
but  with  trust  funds — in  which  case  a  trust  will  result  for  the 
benefit  of  the  party  whose  funds  are  thus  employed  ;  and  where 
a  conveyance  is  made  without  any  consideration,  and  it  appears 
frrmi  circumstances  that  the  grantee  is  not  intended  to  take  bene- 
ficiall}',  the  rule  then  being  that  a  trust'rcsults  to  the  grantor. 

A  constructive  trust  may  arise  either  out  of  fraud  or  in  the 
absence  of  fraud.  The  most  numerous  cases  of  constructive 
trusts  are  those  which  spring  from  actual  or  presumptive  fraud, 
and  will  be  treated  of  under  that  head  of  equitable  relief.  A 
trust  which  arises  from  actual  fraud  is  where  (for  example)  a 
conveyance  is  obtained  by  direct  deceit  or  misrepresentation. 
In  such  a  case,  equity  affords  redress  by  treating  the  wrongdoer 
as  a  trustee  of  the  legal  title  of  the  property,  for  the  benefit  of 
the  injured  party,  and  directing  a  conveyance. 

Presunqitive  fraud  is  where  th(^  law  supposes  that  a  transac- 
tion is  fraudulent  fi-om  the  mere  circumstance  of  the  relations 
of  the  parties  or  the  nature  of  the  transaction,  without  any 
proof  of  actual  deceit.     Thus  a  bargain  between  a  solicitor  and 


CH.  II.]    GENERAL   OUTLINE   OF   EQUITABLE   JURISDICTION.     31 

client,  a  guardian  and  ward,  a  parent  and  child,  a  trustee  and 
cestui  que  trust,  or  any  other  two  pei'sons  standing  in  a  confiden- 
tial or  2^M«*i-confidential  relation,  touching  the  subject-matter 
as  to  which  the  fiduciary  relation  exists,  will  be  set  aside  at  the 
option  of  the  client,  ward,  child,  or  cestui  que  trusty  as  the  case 
may  be,  unless  the  entire  fairness  of  the  transaction  is  abun- 
dantly proved.  In  this  case,  also,  equity  uses  the  theory  of  a 
trust  for  the  purpose  of  effecting  relief,  in  the  same  AA'ay  as  in 
cases  of  actual  fraud. 

A  constructive  trust,  in  the  absence  of  fraud,  may  arise  in 
several  ways.  Thus  where  a  person  acquires  trust  property 
without  notice  of  the  trust,  but  without  having  paid  any  value 
for  it,  he  is  not  entitled  to  hold  it  discharged  of  the  trust,  but 
is  looked  upon  in  equity  in  the  same  light  as  a  trustee,  and  is 
compelled  to  convey  or  otherwise  dispose  of  the  [)roperty  ac- 
cordingly. Another  common  instance  of  constructive  trusts 
occurs  in  the  renewal  of  leases  ;  the  rule  being  that  if  a  trustee 
or  executor,  or  even  an  executor  de  son  tort^  renew  a  lease  in 
his  own  name,  he  will  be  deemed,  in  equity,  a  trustee  for  those 
interested  in  the  original  term.^ 

Another  instance  of  a  constructive  trust  in  the  absence  of 
fraud  is  where  a  binding  contract  is  made  for  the  sale  of  real 
estate.  In  such  a  case,  before  the  conveyance  is  executed, 
equity  treats  the  vendor  as  a  trustee  of  the  land  for  the  benefit 
of  the  vendee,  and  the  latter  as  a  trustee  of  the  purchase-money 
for  the  benefit  of  the  former.  This  doctrine  is  properly  a 
branch  of  the  subject  of  specific  performance,  and  will  be  treated 
of  under  that  head.     ' 

Having  noticed  the  manner  in  which,  trusts  are  called  into 
being,  the  next  thing  to  be  considered  is  "  for  what  purposes  are 
trusts  usually  created?"  One  of  the  most  frequent  and  im- 
portant of  these  purposes  is  to  secure  the  property  of  married 
women  ;  and  this  is  effected  by  a  gift  to  her  sole  and  separate 
use.  The  separate  use  is  a  creature  of  equity  ;  and  is,  perhaps, 
one  of  the  best  illustrations  which  could  be  given  of  the  manner 
in  which  chancery  courts,  in  certain  cases,  depart  from  the  rules 
of  common  law.  By  the  latter,  a  husband  was  entitled  to  all 
his  wife's  personalty  in  jwssession  ;  to  her  chases  in  action,  if 
he  chose  to  reduce  them  into  possession,  or  (as  the  rule  is  some- 

'  Lewin  (10  Eng.  ed.),  192. 


32   GENERAL   OUTLINE   OP    EQUITABLE   JURISDICTION.     [CH.  IL 

times  held)  convert  them  to  his  use ;  and  to  a  life  estate  in  her 
realty.  Equity,  for  the  benetit  of  married  women,  allows  gifts 
to  be  made  to  her  by  which  her  husband  may  be  deprived  of 
all  these  rights. 

By  conveying  the  estate  to  a  trustee  for  the  sole  and  separate 
use  of  a  married  woman,  the  corpus  of  the  estate  may  be  secured 
from  any  control  of  the  husband,  or  from  any  liability  to  his 
debts,  and  the  income  paid  directly  to  the  wife.  In  England, 
and  in  some  of  the  states  of  the  Union,  the  wife  has  the  same 
control  over  the  separate  estate  (unless  expressly  restrained)  as 
she  would  have  if  unmarried.  In  other  states  she  has  only 
those  powers  which  are  conferred  upon  her  by  the  instrument 
creating  the  estate. 

The  descent  and  distribution  of  separate  use  estates  are  the 
same  as  those  of  legal  estates,  except  (of  course)  where  differ- 
ences are  made  by  statute;  and  this  rule  indeed  applies  to  all 
equitable  estates,  with  the  qualification  that  a  woman  is  not 
dowable  out  of  an  equitable  estate,  although  a  man  is  entitled 
to  his  tenancy  by  the  curtesy. 

Connected  with  the  subject  of  a  married  woman's  equitable 
separate  estate  is  what  is  known  as  her  equity  to  a  settlement. 
This  arises  when  a  husband  is  obliged  to  go  into  a  court  of 
chancery  for  the  pur})ose  of  reducing  his  wife's  chores  in  action 
to  possession ;  or  getting  in  any  property  that  belongs  to  her. 
In  such  a  case,  the  court  refuses  to  aid  the  husband,  except 
upon  the  terms  of  making  a  reasonable  settlement  upon  the 
wife  out  of  the  property. 

Gifts  directly  from  the  husband  to  the  wife  will  also  require 
notice  under  this  head — as  these  gifts  are  void  at  law,  and  are 
upheld  In'  virtue  of  equitable  doctrines  only. 

Another  im])ortant  class  of  trusts  is  that  for  charitable 
imrposos.  These  trusts  are  of  a  public  nature,  and  differ  from 
other  trusts  in  several  important  ])articulars,  among  which  two 
may  be  especially  mentioned,  viz.,  first,  that  charitable  trusts 
do  not  require  such  a  decree  of  certainty  in  the  description  of 
the  Ijeneficiaries  as  is  requisite  in  an  ordinary  private  trust ; 
and,  secondly,  such  trusts  are  not  subject  to  the  ordinary  rules 
in  i-elation  to  ])erpetuities.  They  depend  very  much  in  Eng- 
land, and  ill  many  of  the  United  States,  uj)on  a  statute  passed 
in  th<^  reiiin  of  Queen  Elizabeth,  and  constitute  an  important 
branch  of  equitable  jurisdiction. 


CH.    II.]    GENERAL   OUTLIXE    OF    EQUITABLE   JURISDICTION.    33 

A  court  of  chancery  always  exercises  a  supervision  and  con- 
trol over  trustees  in  tlie  atlministratioii  ol  tlieir  trusts.  Anv 
trustee  is  entitled  to  come  into  court  for  advice  or  assistance, 
or  for  the  purpose  (in  a  proper  case)  of  l)eiiig  discharged;  and 
any  cestui  que  trust  may  invoke  the  interposition  of  the  chan- 
cellor in  cases  of  breach  or  abuse  of  the  trust,  or  to  have  a 
vacancy  in  the  office  of  ti'ustee  su[)plied. 

The  duties  of  trustees,  of  course,  vai-\  with  the  character  of 
the  trust  and  tlie  nature  of  the  subject-matter  thereof.  They 
mav  be  said  to  be  summed  up  in  the  dutv  faithfullv  to  attend 
to  the  interests  of  the  cestui  que  trust,  and  to  abstain  from  mak- 
ing any  use  of  the  trust  property  for  the  trustee's  own  benefit. 

Trustees,  according  to  the  English  rule,  are  not  entitled  to 
compensation  ;  but  in  this  country  the  law  is  generally  other- 
wise. 

21.  Mortgages. 

The  case  of  Mortgages  is  the  next  head  of  jurisdiction  in 
which  an  independent  title  is  created  and  recognized  in  equity. 
A  mortgage  is  a  convevance  of  real  estate  to  secure  a  debt  due 
by  the  mortgagor  (the  party  who  executes  the  conveyance)  to 
the  mortgagee  (the  party  to  whom  the  conveyance  is  made), 
coupled  with  a  clause  of  defeasance  by  which  upon  the  payment 
of  the  debt  on  a  day  specified,  the  title  to  the  property  i-evests 
in  the  mortgagor.  At  law,  if  the  day  for  payment  passed  b}^ 
the  estate  became  absolute  in  the  morto-afiee,  and  the  mort- 
gagor's  title  was  wholly  gone.  Equity,  however,  stepped  in  to 
his  I'elief,  and  recoirnized  a  title  still  existing-  in  the  mortgagor, 
whereby  he  was  allowed  a  i-iglit  to  redeem  the  mortgaged  prop- 
erty on  any  subsequent  day  by  paying  the  debt  with  interest. 
This  is  called  tlie  mortgagors  "  equity  of  redemption,"  a  right 
which  is  now  insepai'ablv  ccjnnectcd  with  everv  mortgage. 

On  the  other  hand,  ecpiity  gives  a  remedy,  unknown  to  the 
common  law,  by  allowing  tin;  mortgagee  to  Jo  red  ose  (as  it  is 
called)  this  equity  of  redem])tion.  In  a  foreclosui'e  suit  a  de- 
cree is  entered  whereby  another  day  is  fixed  for  i-edemption  ; 
and  if  the  mortgagor  (l<)(\s  not  take  advantage  of  tlie  new 
opDortunitv  thus  atforded  him.  his  riiiht  is  forever  gone.  The 
existence  of  tile  relation  between  a  mortgagor  and  mortgagee 
(which  relation  is  a  peculiar  one)  produces  certain  consecjuences 
which  will  be  noticed  in  the  pro[)ur  }ilace. 
3 


3-4    GENERAL   OUTLINE    OF    EQUITABLE   JURISDICTION.    [CH.  n. 

22.  Assigumeuts. 

The  last  equitable  title  is  that  which  grows  out  of  the  as- 
signment of  chases  in  action,  which  species  of  property  could 
not  be  transferred  at  law,  but  assignments  of  which  are  upheld 
in  equity  when  they  are  made  for  a  valuable  consideration  and 
do  not  contravene  any  rule  of  public  policy.  In  this  case,  as 
in  that  of  trusts,  equity  creates  a  new  title,  co-existent  with  the 
legal  title,  and  which  (as  has  been  already  explained)  will  be 
enforced  either  by  compelling  the  assignor  to  allow  the  assignee 
to  use  his  name  in  an  action  at  law,  or  by  atfording  direct  relief 
by  bill  in  equity  when  any  difficulty  in  bringing  tlie  legal  action 
exists.  By  such  assignments,  not  only  choses  in  action^  but 
expectancies,  contingent  interests,  and  property  to  be  created 
or  acquired  in  the  future  may  be  transferred,  and  the  title  thus 
acquired  will  be  recognized  and  protected  by  chancery  courts. 

23.  Accident  and  Mistake. 

Besides  creating  new  titles,  independent  of  legal  ownership, 
equity  also  aifords  relief  by  setting  up  and  enforcing  equitable 
rights  in  regard  to  existing  legal  titles.  This  is  done  by  virtue 
of  certain  doctrines  by  which  common-law  rights  of  enjo3MTient 
are  modified  or  controlled.  The  first  of  these  equities  which 
will  be  noticed  are  those  of  Accident  and  Mistake. 

The  relief  afforded  under  the  head  of  Accident  springs  from 
the  ancient  jurisdiction  of  the  court  of  chancery  in  what  were 
known  as  "  cases  of  extremity."  It  is  now  exercised  principally 
in  three  cases :  first,  in  that  of  lost  instruments  ;  secondly,  in 
that  of  defective  execution  of  powers ;  and,  thirdly,  in  the  case 
of  penalties  and  forfeitures. 

The  jurisdiction  of  equity  in  cases  of  Mistake  grew  out  of 
the  great  credit  which  common-law  courts  gave  to  a  sealed 
instrument,  and  to  the  inability  of  these  courts  to  aft'ord  an 
adequate  redress  in  all  cases  of  mistake. 

Mistakes  are  of  two  kinds,  mistakes  of  law  and  mistakes  of 
fact.  As  a  general  rule,  mistakes  of  law  cannot  be  relieved 
against  even  in  equity  ;  although  the  tendency  is  to  grant  relief 
in  all  cases  in  which  there  exists  any  element  of  misrepresenta- 
tion or  even  surprise  ;  but  foi*  mistakes  of  fact,  if  mutual, 
material,  and  not  induced  by  negligence,  relief  may  be  had 
upon  a  proper  case  being  shown.  Such  relief  is  often  adminis- 
tered when  powers  are  defectively  executed  through  mistake. 


CH.  II.]    GENERAL   OUTLINE   OF    EQUITABLE  JURISDICTION.     35 

24.  Fraud — Division  of  Fraud. 

The  next  equitable  rights  which  will  require  notice  are  those 
which  grow  out  of  Fi'aud. 

Fraud,  indeed,  vitiates  transactions  at  law  as  well  as  in 
equity  ;  but  the  jurisdiction  of  chancery  is  superior  to  that  at 
common  law,  for  two  reasons — first,  because  in  equity  fraud  has 
a  more  extensive  signification  than  at  law  ;  and,  secondly, 
because  the  relief  afforded  is  nmch  more  complete. 

It  is,  however,  frequently  difficult  to  say  with  precision  what 
cases  fall  under  the  head  of  f I'aud  as  a  distinct  ground  for  relief 
in  equity,  because  fraud  so  often  exists  in  connection  with  other 
reasons  for  the  assistance  of  a  chancellor  that  it  is  hard  to 
determine  on  what  particular  basis  the  relief  is  afforded.  Thus, 
as  we  have  seen,  certain  kinds  of  constructive  trusts  are  based 
upon  fraud  ;  in  other  words,  equity  considers  that,  in  conse- 
quence of  certain  fraudulent  conduct,  the  relationship  of  trustee 
and  cestui  que  trust  is  called  into  being,  and  the  rights  of  the 
parties  are  determined  upon  the  footing  of  that  relation.  The 
ground  of  relief,  therefore,  is  both  fraud  and  trust.  So,  also, 
certain  equitable  remedies  are  founded  upon  the  idea  of  doing 
complete  justice  in  cases  of  fraud.  Thus,  if  a  person  has  l)een 
fraudulently  induced  to  sign  a  bond,  equity  will  not  compel  the 
obligor  to  wait  until  an  action  at  law  is  brought  thereon,  antl 
then  make  defence,  but  will  afford  relief,  not  onlyconq)lete,  but 
also  immediate,  by  directing  the  fraudulent  instrument  to  be 
delivered  up  and  cancelled.  It  will  be  seen,  therefore,  that  this 
subject  of  fraud  not  only  furnishes  ground  for  relief  at  law,  but 
also  runs  into  at  least  two  other  distinct  heads  of  equity. 

There  are,  however,  certain  classes  of  cases  in  wliich  fraud 
alone  gives  jurisdiction,  and  it  has,  therefore,  been  ordinarily 
considered  as  one  of  the  special  heads  of  the  jurisdiction  of  a 
court  of  chancery,  and  will  accordingly  be  so  treated  in  this 
work. 

Aiiotlii'r  and  very  important  reason  for  so  treating  it  is  the 
fjict  that  m  many  states  of  the  Union  it  is  made  one  of  the 
cases  in  which  equity  })()wers  are  granted  to  the  courts.  In 
those  states,  therefore,  whei'e  these  powers  ai'e  not  general,  but 
limited,  it  is  necessarily  of  no  little  constupience  to  determine 
exactly  what  is  meant  by  the  language  of  the  statute,  and 
therefore  to  kn<<w  w  hat  is  the;  nature  and  what  the  bounds  of 
chancery  jui-isdictioii  on  this  subject. 


36     GENERAL   OUTLINE   OF   EQUITABLE   JURISDICTION.    [CH.  II. 

Fi-aiid  his  been  divided,  according  to  the  classification  of 
Lord  Ilardwicke  in  Chesterfield  v.  Janssen,^  for  the  purpose  of 
convenient  consideration,  into  four  classes,  viz.,  1.  Fraud  arising 
from  the  facts  and  circumstances  of  imposition  ;  12.  Fraud  arising 
fi'om  the  intrinsic  matter  of  the  bargain  itself;  o.  Fraud  ])  re- 
sumed from  the  circumstances  and  condition  of  the  parties  con- 
tracting ;  4.  Fi-aud  affecting  third  persons  not  parties  to  tlie 
transaction.  This  classification  has  been  adopted  in  the  present 
treatise. 


25.  Notice  ;  Estoppel ;  Election. 

Growing  out  of  the  general  subject  of  fraud  is  that  of  No- 
tice, which  embraces  also  the  subordinate  equities  of  bona 
fide  purchasers,  and  the  application  of  purchase-money.  Notice 
is  a  doctrine  which  is  recognized  for  the  purpose  of  ])rotecting 
equitable  titles.  At  common  law  the  ])urchaser  of  a  legal  title 
acquired  the  absolute  pi-opeity  in  the  subject.  In  equity,  how- 
ever, if  he  has  notice  of  an  equitable  title,  he  will  be  considered 
as  a  trustee  of  the  legal  title  for  the  benefit  of  the  equitable 
owner.  On  the  otJjer  hand,  w'ant  of  notice  may  be  a  pi-otection 
to  a  purchaser  against  the  assertion  of  an  equitable  right.  In 
such  a  case  he  sets  up  the  plea  of  being  a  hcma  fide  purchaser 
for  a  valuable  consideration  without  notice;  and  is  thereupon 
entitled  to  the  favorable  consideration  of  a  court  of  chancery. 

Notice  may  be  of  two  kinds:  fii-st,  actual  ',  and  second,  con- 
structive j  and  actual  notice  may  again  be  divided  mio  direct  ov 
positive  notice,  and  indirect^  implied,  or  presumptive  notice. 
The  doctrine  of  lis  pendens  is  akin  to  but  not  founded  on  the 
same  leason  as  that  of  notice,  and  Avill  be  treated  of  under  the 
same  head.  It  is  (stated  briefly)  a  principle  by  which  a  suit  in 
chancery,  duly  prosecuted  in  good  faith  and  followed  by  a  de- 
cree, is  held  to  bind  every  person  who  acquires  from  a  defend- 
ant ^^/j/Zt-wfe  lite  an  interest  in  the  subject-matter  of  the  litiga- 
tion, and  so  that  such  person  takes  subject  to  the  legal  and 
equital)le  rights  of  the  plaintiff,  as  charged  in  the  bill  and  es- 
tablished by  the  decree. 

Another  equity  spi'ings,  also,  from  the  general  head  of  Fraud, 
but  requires  a  separate  consideration,  that,  namely,  of  Esto]>])el. 
Estoppel  is  the  agenc}'  of  the  law  by  which  evidence  to  contro- 

^  1   Atk.  301;  2  Ves.   125;  1  Lead.  Cas.  Eq.  *341  (733,  1th  Am.  ed.). 


CH.  II.]  genp:ral  outltnr  oy  equitable  .TLIRISDICTION.    37 

vert  the  truth  of  certain  indisputable  admissions  is  excluded.' 
Estoppels,  in  general,  may  arise  either  by  matter  of  record,  of 
deed,  or  m^ai?.  Equitable  estoppels  fall  under  the  last  class, 
and  tiiey  grow  out  of  r('})resentations  whicli,  after  they  are 
made,  cannot  be  denied,  but  must  be  adhered  to  by  the  pai-ty 
making  them.  The  representation  which  will  o})erate  as  an 
estoppel  must  be  one  that  is  either  a  suggestion  of  falseiiood,  or 
a  concealment  of  truth  when  there  is  a  duty  to  speak;  it  is 
always  external  to  the  transaction  ;  and  it  may  take  place 
either  in  a  transaction  effected  between  the  party  alleging  the 
estoppel  and  the  party  estopped,  or  in  one  between  the  party 
alleging  the  estoppel  and  some  third  party. 

Somewhat  akin  to  the  doctrine  of  estoppel,  and  therefore  ])rop- 
erly  to  be  considered  in  immediate  juxtaposition,  is  the  doctrine 
of  Electitm,  by  which  a  party  is  compelled  to  choose  between 
inconsistent  benefits,  and  is  ]irecluded  (after  having  once  exer- 
cised his  choice)  from  insisting  upon  rights  which  he  would 
otherwise  be  ])erfectly  free  to  assert.  Thus,  if  a  testator  gives 
money  or  land  to  A.,  and,  by  the  same  will,  gives  something  of 
A.'s  to  11,  here  A.  must  elect  either  to  give  effect  to  the  will 
by  allowing  B.  to  have  the  property  which  the  testator  intended 
should  go  to  him,  or  to  assert  his  right  to  his  own  property,  jji 
which  case  he  must  make  good  its  value  (out  of  the  gift  to 
himself)  to  the  disappointed  beneficiary.  An  election  ma}'  be 
cither  express  or  implied.  In  order  that  the  doctrine  may  be 
called  into  ]>lav  it  is  necessary  that  the  testator  should  affect  to 
dispose  of  propei'ty  which  is  not  his  own,  and  should  also  make 
a  valid  gift  of  his  own  proj)erty  ;  and  it  is  further  recpiisite 
that  the  two-fold  gift  should  be  made  by  the  same  instruiuent. 
In  order  to  nuike  a  valid  election  the  party  electmg  must  have 
adequate  information  in  regard  to  the  values  of  the  two  pieces 
of  property  between  which  he  is  to  choose  ;  and  he  is  entitled  to 
the  assistance  of  the  court  for  the  purpose  of  determining  the 
values.  As  a  gen(M'al  rule,  an  election  can  be  made  only  by 
persons  sui  Juris,  but  a  court  of  equity  will  sometimes  elect  for 
the  benefit  of  n/eme  covert  or  an  infant. 

26.  Conversion. 

The  next  equity  which  will  be  considered  is  that  of  Conver- 
sion, by  which  is  meant  a  change  of  j)i'o|)erty  from  real  into 

'  Bigelow   on   Estoppel,   page   453  e?  seg  (5th  edition). 


38   GENERAL   OUTLINE    OF    EQUITABLE   JURISDICTION.     [CH.  II. 

personal,  or  i'roiu  personal  into  real,  not  actually  taking  ])lace, 
but  presumed  to  exist  only  by  construction  or  intendment  of 
equity.  This  result  may  happen  under  a  will,  or  by  an  instru- 
ment inter  'vivos.  A  deyise  of  land  to  trustees,  with  impera- 
tive directions  to  sell  and  divide  the  proceeds  between  certain 
persons,  \vould  be  an  illustration  of  a  conversion  under  a  will; 
a  Ijinding*  conti'nct  for  the  sale  of  realty  would  be  an  example 
of  the  app1icalii)n  of  \\w  same;  docti-in(}  to  a  transaction  inter 
vrri><:.  In  both  cases  lh(>  land  wouhl,  in  the  eye  of  equity,  be 
c')nsi(h'rcd,  rorcci'tain  purposes  of  devolution,  turned  intomoney 
fio;a  lh(^  (late  of  the  (K'aih  of  the  testator  in  the  one  case,  and 
from  the  date  of  the  contract  in  the  other;  and  in  the  eventof 
the  death  of  the  beneliciary  or  the  vendor,  would  be  distribut- 
able as  ])ersonalty  to  the  next  of  kin,  and  would  not  descend  to 
the  heir  as  I'oal  estate. 

To  effect  a  conversion  l)y  will  it  is  generally  necessary  that 
the  woi'ds  be  imperative  ;  and  In'  contract,  that  its  terms  should 
be  l)iMding.  Certain  exce[)tioiis,  however,  to  these  general  rules 
may  occasionally  occur. 

The  purposes  for  which  a  conversion  is  designed  sometimes 
whi)lly  or  partially  fail,  and  interesting  questions  then  arise  as 
to  the  effect  of  this  failure  upon  the  subsequent  devolution  of 
the  estate.  When  the  failure  is  total  the  rule  is  very  simple, 
as  no  conversion  then  takes  place.  In  cases,  however,  of  partial 
failure,  the  rules  are  more  diiBcult  of  application,  and  cannot  be 
condensed  in  a  brief  synopsis. 

The  parties  interested  in  an  estate  directed  to  be  converted 
may,  if  they  all  concur,  elect  to  take  it  in  its  present  and  not  in 
its  changed  state.  By  such  an  election  there  is  effected  what  is 
called  a  re-conversion,  by  which  the  property  is  considered  as 
retained  in  its  actual  condition,  and  is  transferable  and  descend- 
ible accordingly.  Re-conversion  may  sometimes,  also,  be  ef- 
fected by  operation  of  law. 

27.  Adjustment ;  and  herein  of  Set-Off,  Contribution,  Sub- 
rogation, Exoneration,  Marshalling. 

The  next  class  of  equitable  rights  which  will  require  con- 
sideration embraces  those  which  may  be  comprehended  under 
the  general  head  of  Adjustment,  and  which  includes  the  subor- 
dinate heads  of  Set-off,  Contribution,  Exoneration,  Subrogation, 
and  Marshalling.     These  equities  are  called  into  play  for  the 


CH.  II.]    GENERAL   OUTLINE    OF    EQriTAHLE   JURISDICTION.     39 

purpose  of  securin<^  the  orderly  aiul  equitable  adjustment  of 
liabilities  against  the  parties  by  whom,  and  in  favor  of  those  to 
whom,  they  are  justly  due;  and  the}^  all  depend  upon  the 
general  equitable  principle  that  burdens  ought  to  be  thrown 
upon  those  who  should  justly  bear  them,  but  only  in  their  due 
proportion  and  in  their  proper  order,  and  that  benefits  should 
be  secured  to  those  wiio  are  of  right  entitled  thereto,  with  a  just 
regard  to  the  rights  of  others. 

The  right  of  Set-oif,  although  it  is  a  right  of  equitable  origin, 
has,  nevertheless,  been  so  effectually  introduced  by  statute  both 
in  England  and  in  this  country,  that  the  occasions  for  its  appli- 
cation by  courts  of  chancery  are  exceedingly  i-are.  Mere  matters 
of  set-off  will  not  give  the  court  jurisdiction,  for  such  rights  can 
be  effectually  tried  at  law  ;  but  where  there  is  anything  peculiar 
in  the  case,  so  as  to  render  it  impossible  for  exact  justice  to  be 
done  by  a  court  of  law  under  the  statutes,  a  court  of  chancery 
will  afford  relief  through  the  medium  of  an  equitable  set-off/ 

The  equity  of  Contribution  arises  when  one  of  several  parties, 
who  are  liable  to  a  common  debt  or  obligation,  discharges  the 
same  for  the  benefit  of  all.  In  such  a  case  he  has  a  right  to  call 
upon  his  co-debtors  for  contribution.  This  right  is  most  fre- 
quently exercised  in  the  case  of  sureties ;  as  is  also  the  equity 
of  Exoneration,  which  is  a  right  of  a  person  secondarily  liable 
to  call  upon  the  party  primarily  liable,  to  discharge  the  debt, 
or  to  reimburse  him  if  he  has  paid  it. 

The  case  of  suretyship,  however,  is  but  an  illustration  of  both 
of  these  rights ;  and  the  same  equities  are  applicable  to  other 
relations  out  of  which  joint  or  successive  liabilities  have 
sprung. 

The  right  of  Subrogation  is  an  auxiliary  equity,  called  into 
existence  for  the  purpose  of  enabling  a  party  secondarily  liable, 
but  who  has  paid  the  debt,  to  reap  the  benefit  of  any  securities 
which  the  creditor  may  hold  against  the  principal  debtor,  and 
by  the  use  of  which  the  party  paying  may  tiius  be  made  whole.^ 
Thus  a  surety  Avho  pays  a  del)t  whicli  has  been  reduced  to  judg- 
ment is  entitled  to  have  the  judgment  ke\)t  alive  for  his  benefit, 
and  to  enjoy,  as  against  the  principal  debtor,  the  advantages 
which  could  have  been  claimed  by  the  judgment-creditor. 

None  of  these  equities  are  founded  upon  contract,  but  upon 

I  Porter    v.    Roseman,     1G5    Ind.  2  Fore.st  Oil  Co. 's  Appeals,  118  Pa. 

?60.  145. 


40    GENKRAL    OUTLINK    OF    ICQriTA  HLK    .» T  RISDICTIOX.     [("H.   II. 

general  priiK-iplt's  of  eijuity,  aiijl,  being-  all  i-igUts  ol"  a  jjiirely 
equitable  nature,  ihcy  are  subject  to  the  general  qualilication  bv 
which  the  exercise  of  all  such  rights  is  controlled,  viz.,  that 
they  must  not  be  asserted  in  such  a  way,  or  under  such  circum- 
stances, as  to  do  violence  to  the  rights  and  equities  of  other 
parties. 

The  doctrine  of  Marshalling  gi-ows  out  of  the  principle  that 
a  party  having  two  funds  to  satisfy  his  demand  sliall  not,  bv 
his  election,  disai)point  a  party  wlio  has  only  one  fund.'  Thus, 
a  person  who  has  a  mortgage  on  two  i)arcels  of  land  ought  not, 
in  faii-ness,  to  resort  in  the  first  instance  to  the  parcel  upon 
which  there  also  happens  to  be  a  junior  mortgage  which  is  not 
otherwise  secured  :  for  in  so  doing  the  junior  mortyao-ee  miffht 
be  altogether  cut  out.  Equity,  however,  is  loath  to  interfere 
with  the  rights  of  a  creditor  to  enforce  payment  out  of  any  of 
his  sec-ui'ities,  and  therefore  the  i-emedy  usually  afforded  to  the 
junior  disa[)|)ointed  mortgagee  is  to  substitute  him  to  the  rights 
of  the  ))aramount  mortgagee  as  against  the  other  property. 

The  doctrine  of  Marshalling  is  applied  in  the  administration 
of  estates  of  debtors  both  during  their  lifetime  and  after  their 
death  ;  although  in  this  country  the  necessity  for  its  application 
to  the  estates  of  decedents  has  been  very  much  lessened  by  the 
numerous  legislative  enactments  whereby  the  distribution  of  the 
assets  of  a  deceased  debtor  is  I'egulatetl  and  controlled. 

28.  Equitable  Liens. 

The  last  equitable  rights  which  will  be  noticed  are  Liens. 
Alien  is  a  right  at  common  law;  but  it  is  a  right  which  is 
inseparable  from  the  possession  of  the  article  on  which  the  lien 
is  claimed  to  exist. 

Li  equity,  however,  a  lien  may  exist  altogether  independently 
of  possession,  and  under  circumstances  which  would  give  the 
))arty  no  common-law  right  at  all.  There  ai-e  several  of  these 
equitable  liens,  one  of  the  most  important  of  them  being  the 
vendor's  lien  upon  real  estate  for  unpaid  purchase-money.  This 
lien  constitutes  a  charge  u{)on  the  estate  in  the  hands  of  the 
vendee,  but  it  does  not  come  into  actual  existence  until  a  bill 
is  filed  to  assert  it.  Tt  is  recos^nized  in  man\'  of  the  United 
States;  in  others,  however,  it  has  never  existed,  or  has  been 

'  Approved  in    Bank  of  Commerce  r.  First  Xat.  Bank,  150  Ind.  588. 


CH.  II.]    GENERAL    OITTLTNE   OF   EQDITAP.LE   .irULSDICTION.     41 

abolished  or  circumscribed  by  statute.  Equitable  liens  are  also 
created  by  deposits  of  title-deeds,  by  mortgages  and  pledges  of 
personal  propert}-,  and  b}'^  other  contracts  which  in  equity  are 
treated  as  givnng  the  party  for  whose  benefit  they  are  made  dis- 
tinct rights  in  specific  j)roperty  instead  of  general  claims  against 
the  other  party  for  damages.  These  liens  have  been  applied  to 
many  classes  of  cases  in  modern  times,  and  the  sphere  of  their 
operation  may  be  said  to  be  constantly  widening. 

29.  Equitable  lleiiuMlies  ;  Specific  Perform .aiice. 

The  next  general  division  of  chancery  jurisdiction  is  that  of 
Equitable  Remedies ;  and  the  first,  and  one  of  the  most  impor- 
tant of  these,  is  Sj^ecific  Performance. 

At  common  law  the  general  rule  was  that  all  injuries  were  to 
be  redressed  by  damages ;  and  relief  by  a  restoration  of  the 
injured  party  t(j  the  actual  enjoyment  of  the  thing  or  right  of 
which  he  liad  been  unjustly  deprived  was  never  afforded  except 
in  the  two  cases  of  detinue  and  replevin.  In  equity,  however, 
the  rule  is  just  tlie  other  way.  A  chancellor  always  aims  at 
restoring  the  injured  party  to  the  exact  position  which  he  ought 
to  have  occuj)ied  if  the  wrong  had  never  taken  place.  i)ne  of 
the  means  by  which  this  object  is  attained  is  the  equitable  rem- 
edy by  specific  performance,  which  is,  perhaps,  most  frequently 
used  for  tlie  purpose  of  enforcing  contracts  for  the  sale  of  real 
estate,  althongii  it  may  be  and  is  aj)plied  to  other  cases  in  which 
the  common-law  remedy  is  insufficient,  by  reason  of  the  inade- 
quacy of  pecuniary  damages,  or  from  the  impossibility  of  esti- 
nuiting  them.  This  equitable  remedy,  however,  is  not  applied 
except  under  certain  restrictions  and  within  certain  limits. 

Thus  it  is  a  fundamental  principle  that  specific  ]ierformance 
will  not  be  decreed  unless  the  contract  sought  to  be  enforced  is 
based  on  a  valuable  consideration,  for  the  obvious  reason  that 
as  the  inadequacy  of  damages  is  the  ground  for  equitable  inter- 
ference, there  can  be  no  such  inadequacy  where  there  is  no 
daiiuige  sustained,  as  is  the  case  with  a  mere  volunteer. 

Again,  the  complainant  must  show  either  that  no  damages 
could  be  recovered  at  law,  or  that  the  damag-es  which  mioht  l)e 
recovered  would  fidl  short  of  affording  complete  redress.  The 
reason  for  this  rule  is  the  obvious  one  that,  if  money  would 
operate  as  a  full  measure  of  redress,  there  is  no  ground  what- 
ever for  the  interference  of  a  chancellor,  as  the  complainant 


42   GENERAL   OUTLINE   OF    EQUITABLE   JURISDICTION.     [CH.  II. 

can  get  all  he  wants  at  law.  It  must,  moreover,  be  observed 
that  the  jurisdiction  to  decree  specilic  performance  is  always 
exercised  subject  to  general  equitable  considerations  ;  and  that, 
therefore,  a  court  of  equity  will  not  aid  a  complainant  if  he 
has  been  guilty  of  laches  and  negligence,  or  if  equitable  con- 
siderations interpose  upon  the  other  side — such  as  that  the 
contract  is  hard  and  oppressive,  or  that  the  condition  of  things 
has  materially  changed,  or  the  like. 

Equity  will  not  enforce  a  contract  within  the  Statute  of 
Frauds  {e.  g.,  an  agreement  to  sell  real  estate),  unless  it  is  re- 
duced to  writing;  but  to  this  rule  there  are  some  exceptions. 
Thus,  parol  contracts  may  be  enforced  where  there  has  been  a 
sufficient  part  performance  of  the  contract,  or  where  its  reduc- 
tion to  w^riting  has  been  prevented  by  fraud,  or  where  the  con- 
tract is  admittetl  by  the  defendant's  answer,  and  the  statute  is 
not  set  up  as  a  defence. 

Equity,  also,  in  applying  this  equitable  remedy,  will  some- 
times call  into  play  subordinate  equities,  by  decreeing  specific 
performance  with  compensation  for  defects,  and  by  giving  time 
to  make  out  a  title  beyond  the  day  fixed  in  the  contract.  Upon 
the  principle  of  specilic  performance,  moreover,  parties  may  be 
compelled  to  make  good  representations  upon  the  faith  of  which 
other  parties  have  been  induced  to  act,  and,  upon  the  same 
principle,  negative  covenants  may  be  enforced  in  terms. 

30.  Injunctions. 

The  equitable  remedy  by  Injunction  may  be  described  as  in 
a  certain  sense  the  complement  of  the  remedy  by  specific  per- 
formance ;  as  in  the  latter  case  a  party  is  compelled  to  do  what 
it  is  his  duty  to  do;  Avhereas  by  injunction  he  is  restrained 
from  doing  that  which  he  ought  not  to  do.  Injunctions,  how^- 
ever,  are  sometimes  of  a  mandatory  character,  in  wdiich  case 
they  compel  the  performance  of  an  act,  and  are,  therefore, 
equivalent  to  a  decree  for  specific  j)erformance.  An  injunction, 
in  its  legal  sense,  may  consequent!}'  be  defined  to  be  a  writ 
remedial  issuing  by  order  of  a  court  of  equity,  and  command- 
ing a  defendant  to  perform  some  act,  or  restraining  a  defendant 
from  the  commission  or  contitmance  of  some  act.  The  writ  is, 
therefore,  either  mandatory  or  prohibitory.  Injunctions  are 
also  either  interlocutory,  /.  e.,  made  during  the  progress  of  the 
cause,  or  perpetual,  i.  e.,  made   upon   final  decree.      They  are 


CH.  IT.]    GENERAL   OUTLINE   OF   EQUITABLE   JURISDICTION.    43 

either  ex  jxirte  or  after  hearing  ;  and  were,  formerly,  either 
common  or  special ;  but  the  common  injunction  is  now  practi- 
cally out  of  use,  and  all  injunctions  are  special — i.  e.,  granted 
upon  the  merits  as  disclosed  by  affidayits  or  other  proofs. 

The  purposes  for  which  injunctions  are  issued  are  yer}''  nu- 
merous, and  extend,  in  fact,  over  nearly  the  whole  field  of  equi- 
table jurisdiction.  They  may  be  diyided  into  two  general  divi- 
sions, namely,  first,  those  cases  in  which  the  writ  issues  for 
the  purpose  of  protecting  equitable  rights  ;  and,  secondly,  those 
in  which  the  writ  issues  for  the  purpose  of  protecting  legal 
rights. 

Injunctions  are  used  for  the  purpose  of  protecting  equitable 
rights  in  two  ways  :  in  the  first  place,  by  enjc^ining  proceedings 
in  the  common-law  courts,  whereby  ami  wherein  such  riglits 
may  be  violated  or  disregarded  ;  and,  in  the  second  place,  by 
interposing  for  the  protection  of  such  equities  when  injury 
thereto  is  threatened  by  other  means  than  through  legal  })ro- 
ceedings. 

Under  the  first  of  these  heads  it  is  well  settled  that  equity 
will  interfere  to  restrain  proceedings  at  law  whenever,  through 
fraud,  mistake,  accident,  or  want  of  discovery,  one  of  the  parties 
in  a  suit  at  law  obtains,  or  is  likely  to  obtain,  an  unfair  advan- 
tage over  the  otliei-,  so  ns  to  make  the  legal  proceedings  an  in- 
strument of  injustice. 

It  is  difficult,  ])erhaps,  to  mark  out  with  precision  the  exact 
limits  within  which  a  court  of  equity  will  interfere  with  pro- 
ceedings at  law  ;  but  it  may  be  stated  generally  that  such  an 
injunction  will  be  granted  whenever,  in  the  common-law  action, 
an  equitable  title  is  not  recognized,  or  an  equitable  right  not 
enf(jrced,  or  where  exact  and  complete  justice  would  not  be 
done  between  the  parties  by  reason  of  the  want  of  an  equitable 
remedy. 

A  court  of  equity,  moreover,  frequently  interferes  by  injunc- 
tion for  the  purpose  of  preventing  unnecessary  or  vexatious 
litigation  ;  and  this  it  does  in  many  ways,  viz.,  by  compelling 
a  party  to  elect  between  two  remedies  ;  by  restraining  a  party 
from  bringing  an  action  in  another  court  after  a  court  of  equity 
has  once  obtained  possession  of  a  cause  ;  by  ])utting  a  stop  to 
repeated  attempts  to  litigate  the  same  question;  and  by  inter- 
fering to  protect  a  party  who  is  lial)le  to  discharge  some  debt, 
duty,  or  obligation  from  vexatious  suits  by  two  or  more  parties 


44    TrEXEKAL    OT^TLTM'.    oK    FJ.)!' IT  A  i;i,K    .1  rRrsmCTinX.     [CH.   IT. 

severaily  claiming  to  l)e.  entitled  l«i  ilic  In-nelit  oi'  siu-li  debt, 
duty  or  ol)ligati()ii.  JJills  to  restrain  i'e[)eated  attempts  to  liti- 
gate the  same  question  are  termed  bills  of  peace,  and  are  of  two 
kinds,  being  filed  either  (first)  to  prevent  the  vexatious  occur- 
rence of  litigation  by  a  numei-ous  class  insisting  n])on  the  same 
I'ight,  or  (second)  to  ])revent  the  same  individual  from  reiter- 
ating an  unsuccessful  claim.  ]>ills  to  ])rotect  parties  who  are 
lial)le  to  several  claimants  in  respect  of  the  same  debt,  duty,  or 
ol)ligation,  are  called  l)ills  of  inter})leader,  and  are  based  upon 
the  ground  that  a  mere  stakeholder,  who  claims  no  interest, 
ouyht  not  lo  be  troubled  bv  the  acticms  of  conllictini>'  i)arties 
who  do  claim  an  interest.  Such  a  bill,  therefore,  must  show 
title  in  two  claimants,  and  it  must  not  show  any  interest  in  the 
subject-matter  on  the  part  of  the  party  filing  it. 

Of  the  second  general  class  of  cases  in  which  equity  interferes 
by  injunction  for  tlu^  })ui'|)oso  of  protecting  ecjuitable  rights, 
bills  to  restrain  a  trustees  from  committing  breaches  of  trust,  to 
restrain  a  partner  from  a  violation  of  his  duty  as  j)artner,  or  to 
restrain  the  disclosure  of  coiilidential  communications  or  of 
trade  secrets,  may  be  taken  as  illustrations.  In  such  cases 
equitable  titles  and  rights,  ami  not  those  of  common  law,  are 
infringed  ;  and  hence  injunctions  for  the  purpose  of  protecting 
tiiem  fall  pi'operly  undei*  the  fii'st  of  the  two  grand  classes  into 
which  these  writs  have  been  divided. 

Again,  equity  will  interfere  for  the  purpose  of  protecting 
legal  rights.  The  occasions  which  most  usually  call  for  the  in- 
terference of  equity  for  tliis  ])urpose  are  cases  of  waste,  trespass, 
nuisam-e,  ])ateiit-right,  copyright,  literary'  ])roperty,  trade-marks, 
alienation  of  property  pending  litigation,  transfer  of  negotiable 
instrumt'Uts,  ])i"otection  of  pi'operty  ])ending  litigation,  breach 
of  negative  (-(jvenants,  and  corporations. 

'i'he  nature  of  these  injuries  and  the  character  of  the  I'elief 
which  equity  ap})lies  in  each  particular  casti  will  be  explained. 

\M.  Re-executiou ;  Reforiiiatioii ;  Kescissioii ;  {'aiicella- 
tion. 

Akin  to  the  equitable  remedies  of  specific  performance  and 
injumiion  are  those  of  lie-execution,  lieformation,  Itescission 
and  Cancellatit)n.  All  these  remedies  together  embrace,  as  it 
were,  the  complete  circle  of  e(|iiitable  relief  in  the  case  of  con- 
tracts and  duties.     Thus,  a  party  may  be  held  to  a  literal  com- 


CH.  II.]    GENERAL   OUTLINE   OF    EQUITABLE   JURISDICTION.     45 

pluiTice  with  his  contruct  by  ii  tlecree  f<jr  its  specific  perform- 
ance; or  he  may  be  resti-ained  from  a  violation  of  the  contract 
by  a  wi'it  of  injunction  ;  or,  finally,  if  the  written  paper,  which 
is  the  evidence  of  the  contract,  be  lost,  a  re-execution  may  be 
ordered  ;  if  the  contract  has  been  erroneously  expressed,  a  ref- 
ormation may  be  decreed  ;  and  if,  on  the  other  hand,  it  has 
been  obtained  throut^-h  fraud,  it  may  be  rescinded,  and  the 
documentary  evidence  may  be  directed  to  be  delivered  up  and 
cancelled.  Re-execution,  reformation,  and  cancellation  are  the 
means  whereby  the  equities  of  accident,  mistake,  and  fraud  are 
ordinarily  worked  out.  Thus,  where  instruments  are  lost 
through  accident,  the  equitable  remedy  which  is  applied  is  re- 
execution  ;  where  an  instrument  has  been  erroneously  frametl 
through  mutual  mistake,  so  that  it  does  not  express  the  inten- 
tion of  the  parties,  and  the  mistake  is  clearly  proved,  the  re- 
dress which  is  ajfforded  is  reformation  ;  while,  where  a  contract 
has  been  entered  into  in  ignorance  or  mistake,  or  is  tainted 
with  fraud,  the  relief  which  a  chancellor  affords  is  rescission 
and  cancellation. 

32.  Account;  Dower;  Partition;  Confusion  of  Bound- 
.iries  ;  Rent. 

The  next  equitable  I'emedies  which  demand  consideration 
are  bills  for  Account,  foi-  Dower,  for  Partition,  in  cases  of  Con- 
fusion of  Boundaries,  and  for  the  ascertainment  of  Rent.  Bills 
for  account  arose  from  the  inadequacy  of  the  remedies  at  com- 
mon law,  those  remedies  being  exceedinolv  limited  in  their 
scope  and  cumbersome  in  their  operation.  In  the  e(]uitable 
metliod  of  procedure,  ground  is  first  laid  l)y  o])taining  dis- 
covei'v  (when  necessary)  from  the  defendant,  and  the  cause  is 
then  referred  to  a  master  before  whom  the  account  is  taken. 

Bills  for  partition  and  dower  also  had  their  origin  in  the 
inadequacy  of  the  commim-law  remedies.  The  superiority  of 
the  chancery  practice  in  these  cases  is  due  to  the  fa(;t  that  dis- 
covery may  in  this  way  be  had,  that  masters  and  commissioners 
may  be  appointed  to  examine  and  report  upon  the  rights  of  the 
jiarties,  and  that  tlu;  decree  may  lie  moulded  so  as  to  embrace 
and  adjust  those  rights  in  the  subject-matter  of  disjuite. 

The  equitable  remedy  for  the  ascertainment  of  l)()iindarit's  is 
used  when  boundaries  have  become  confused  through  the  mis- 
conduct of  the  defendant,  or  of  those  under  whom  he  chiims; 


46    GKNERAL   OUTLINE   OF    EQUITABLE   JURISDICTION.     [CH.  U. 

and  a  bill  for  the  payment  of  rent  will  only  lie  in  extraordi- 
nary cases,  as  where  the  days  of  payment  are  uncertain,  or  the 
remedy  by  distress  has  been  lost  without  any  fault  of  the  owner 
of  the  land. 

33.  Partnership  Bills  ;  Creditors'  Bills ;  Administration 
Suits. 

The  equitable  remed}^  of  Partnership  Bills  is  chiefly  based 
upon  the  necessity  for  some  kind  of  procedure  by  which  part- 
nership affairs  can  be  wound  up  and  partnership  assets  admin- 
istered ;  a  procedure  which,  it  is  manifest,  is  not  afforded  by  any 
of  the  forms  of  action  at  common  law.  Other  relief  is  also  in- 
cidentally afforded  in  equity.  Tiuis,  accounts  are  taken,  assets 
are  got  in  and  protected,  breaches  of  partnership  duty  are 
enjoined,  and  sales  of  pai'tnership  effects  are  ordered.  A  great 
many  desirable  results  are  therefc^re  accomplished  in  one  suit ; 
and  justice  is  administered  not  only  between  the  partners,  but 
also  between  the  two  sets  of  creditors  which  almost  invariably 
exist  in  such  cases,  viz.,  the  creditors  of  the  firm  and  those  of 
individual  partners.  In  settling  the  conflicting  claims  of  these 
two  classes  of  creditors,  certain  equitable  doctrines  <ire  applied 
by  the  courts,  which  are  based  mainly  upon  the  general  propo- 
sition that  it  is  the  equity  of  each  partner  that  firm  assets  are, 
in  the  first  place,  to  be  taken  to  pay  firm  debts,  and  that  the 
equities  of  the  creditors  are  to  be  worked  out  through  this 
equity  of  the  ])artners.  These  doctrines  might,  Avithsome  pro- 
priety, bo  noticed  under  the  general  equity  of  adjustment ;  but 
their  intimate  connection  with  the  subject  of  partnership  bills 
would  seem  to  render  their  consideration  under  the  head  of 
that  equitable  remedy  still  nu^i'c  a])[)ropriate. 

The  equitable  remedy  by  Creditors'  1  Jills  is  one  which  has 
been  made  use  of  \ery  frequently  in  the  United  States.  They 
are  used  for  the  purpose  of  getting  at  property  of  a  debtor  which 
cannot  be  reached  at  law,  either  because  it  has  been  conveyed 
away  beyond  the  grasp  of  an  execution,  or  because  it  is  of  such 
a  character  that  it  cannot  be  seized  under  a  common-law  writ. 
Creditors'  Bills  may  be  filed  dui-ing  the  lifetime  of  the  debtor, 
or  after  his  deatli.  Tn  the  latter  case,  thev  generally  result  in 
Administi-ation  Suits,  as  the  executor  does  not  usually  admit 
assets;  and,  therefore,  the  decree  is  not  simply  for  the  pay- 
ment of  the  creditors  bv  whom  the  bill  has  been  filed,  but  for 


CH.  n.]     GENERAL   OUTLINE   OF   EQUITABLE   JURISDICTION.    47 

a  general  administration  of  the  debtors  estate.  Legatees  also 
may  come  into  chancery  for  the  ascertainment  of  assets  and 
the  administration  of  the  estate. 

Under  administration  suits,  also,  will  be  considered  certain 
subordinate  equities  which  more  frequently  arise  in  bills  of 
this  kind ;  these  are  the  doctrines  of  Equitable  Assets,  of  Per- 
formance, and  of  Satisfaction.  In  some  instances  the  impor- 
tance of  these  equitable  doctrines  has  ceased  by  reason  of  statu- 
tory changes  in  the  law, 

34.  Infants  ;  Idiots ;  Lunatics. 

The  jurisdiction  of  the  High  Court  of  Chancery  in  England 
over  the  estates  of  Infants  results  from  a  prerogative  of  the 
crown  as  J9«r6'w«  ^9«^r/te.  In  the  United  States  this  jurisdiction 
is  not  of  as  much  importance  as  in  England,  the  persons  and 
estates  of  minors  being  generally  under  the  supervision  of  Or- 
phans' Courts,  Surrogates'  Courts,  or  Courts  of  Probate,  whose 
powers  are  regulated  by  statute.  Still,  in  those  states  where 
courts  of  chancery  with  general  equity  powers  exist,  the  juris- 
diction is  still  exercised  ;  and  in  some  states  such  jurisdiction 
is  expressly  conferred  b}^  statute  upon  the  equity  courts.  The 
principal  incidents  to  this  jurisdiction  are  that  the  ward  must 
be  educated  under  the  court's  superintendence,  that  his  estate 
must  be  managed  and  applied  under  the  like  superintendence, 
and  that  his  marriage  must  be  with  the  sanction  of  the  court. 

The  jurisdiction  of  the  English  Court  of  Chancery  in  the 
case  of  Lunatics  and  Idiots  is  peculiar  in  this  respect,  viz.,  that 
it  is  not  exercised  in  a  regular  suit,  but  by  the  chancellor  per- 
sonally on  petition,  and  the  appeal,  if  his  order  be  erroneous, 
is  to  the  king  in  council,  and  not  to  the  House  of  Lords. 

This  jurisdiction  is  exercised  (in  the  first  place)  for  the  pur- 
pose (^f  ascertaining  the  fact  of  lunacy  ;  and  (secondly)  for  the 
support  of  the  lunatic  and  the  management  of  his  estate.  The 
first  end  is  attained  l)y  the  issuing  of  a  commission  in  the 
nature  of  a  writ  de  lunatico  inquirendo^  under  which  the  ques- 
tion of  lunacy  is  passed  upon  by  a  jury  ;  and  the  second  pur- 
pose is  accom]ilished  by  the  appointment  of  a  committee  to 
take  charge  of  the  person  and  estate  of  the  lunatic. 

The  care  of  the  persons  and  estates  of  lunatics  and  idiots  is 
governed  in  many  states  by  statutes  ;  in  some  states,  however, 
courts  of  chancery  exercise  jurisdiction  over  the  subject. 


48    GENEUAL    OLITLIXE    OF    EQL'ITABLE    JURISDICTION.      [CH.    II. 

35.  Discovery ;  Conimijssions  to  examine  Witnesses 
abroad  ;  Perpetuation  of  Testimony  ;  Examinations  de  bene 
esse. 

A  bill  for  discovery  is  one  whereby  the  power  of  the  court 
is  invoked  for  the  purpose  of  compelling  the  defendant  to  dis- 
cover and  set  forth  upon  oath  every  fact  and  circumstance 
within  his  knowledge,  information  and  belief  material  to  the 
plaintiff's  case.  It  is  an  equitable  remedy  of  great  antiquity, 
and  was  formerl}^  of  very  great  importance,  as  no  power  to 
eUcit  testimony  from  a  party  to  a  cause  existed  at  common 
law.  At  the  present  day,  however,  tiie  necessity  for  the  exer- 
cise of  this  equitable  remedy  has  become  much  less  frequent 
than  formerly,  as  in  the  federal  courts,  and  in  those  of  most  of 
the  United  States,  and  of  England,  parties  are  now  competent 
and  compellable  to  testify. 

The  genei-al  right  to  discovery  is  fenced  about  by  certain 
prohibitions  and  restrictions,  whereby  the  power  of  the  court 
is  prevented  from  being  abused.  Thus,  in  the  first  place,  no 
person  need  discover  matters  tending  to  criminate  himself  or 
to  expose  him  to  penalty  or  forfeiture ;  in  the  second  place, 
no  one  is  compellable  to  discover  confidential  communications 
which  have  passed  between  him  and  his  legal  adviser;  and 
lastly,  persons  occupying  official  positions  cannot  be  compelled 
to  disclose  matters  of  state  the  publication  of  which  would  be 
prejudicial  to  the  community. 

Subject  to  these  restrictions,  every  competent  defendant  in 
equity  must  answer  as  to  all  facts  material  to  the  plaintiff's 
case;  he  must  answer  to  all,  and  not  to  a  portion  only  ;  and  he 
must  answer  distinctly,  com})letely,  and  without  needless  pro- 
lixitv,  and  to  the  best  of  his  information  and  belief. 

A  court  of  equit}'  w'ill  not  only  compel  a  defendant  to 
answer  under  oath,  but  \vill  also,  where  it  is  necessary,  oblige 
him  to  ])roduce  books  and  documents  ^v'hich  are  in  his  pos- 
session or  control,  which  are  material  to  the  complainant's 
case,  and  which  do  not  fall  within  any  of  the  protecting 
rules  mentioned  above.  In  the  United  States  this  power  is 
lat'oelv  exercised  bv  common-law  courts  under  statutorv  iirovi- 
sions. 

Courts  of  equity  also  have  jurisdiction  to  issue  commissions 
to  examine  witnesses  abroad  ;  to  entertain  bills  for  the  perpet- 
uation of  testimon}-  when  a  right  cannot  be  immediately  deter- 


CH.  II.]     GENERAL   OUTLINE   OF    P^QUITABLE   JURISDICTION.    49 

mined  ;  and  to  order  examinations  de  bene  es^se  to  be  used  in 
their  own  proceedings  or  in  those  of  other  courts. 

36.  Bills  quia  timet ;  Receivers;  \\ rits  ot  7ie &eat ;  Writs 

of  Sappllcavit. 

The  last  equitable  i-emedies  which  require  notice  are  bills 
Qaia  Tlniet^  the  a[)pointment  of  Receivers,  writs  of  iVe  Exeat^ 
and  writs  of  Supplicavlt. 

Bills  (ptm  timet  are  analogous  to  the  hrevia  anticipantia  (writs 
of  prev'^ention)  at  common  law.  Their  object  is  to  prevent  antic- 
ipated mischief,  or  to  protect  a  ])arty  from  vexatious  litigation 
which  is  likely  to  occur.  Thus,  where  a  man  covenants  to  save 
another  harmless  in  respect  to  certain  payments  which  are  to 
be  made  from  time  to  time,  a  bill  may  be  filed,  before  an}' 
breach,  to.-  the  purpose  of  obtaining  a  decree  that  the  defend- 
ant shall  specifically  perform  his  covenant,  and  a  reference  to 
a  master  will  be  directed,  to  re})ort  from  time  to  time  any 
bre;ich  that  may  happen  so  that  action  of  the  court  may  be  at 
once  taken  thereon.  kSo  also  bills  may  be  filed  for  the  purpose 
of  compelling  a  jmrty  who  has  Vi  j^^'imd  f<^eie  right  to  assert  it 
within  a  reasonable  time.  Sometimes,  also,  bills  which  are  filed 
for  the  purpose  of  removing  a  chjud  from  a  title  may  fall  under 
the  same  class. 

Another  instance  of  the  preventive  remedies  of  the  Court  of 
Chancery  is  that  of  the  appointment  of  receivers.  These  ap- 
pointments are  made  for  the  purpose  of  preserving  property 
and  of  preventing  threatened  or  anticipated  injury  thereto.  A 
receiver  is  an  indifferent  person  between  the  parties,  appointed 
by  the  court  to  collect  and  receive  the  rents,  issues  and  })r()fits 
of  land,  or  the  produce  of  personal  estate,  or  other  things  in 
question,  peniling  the  suit,  which  it  does  not  seem  reasonable 
to  the  court  that  either  ])arty  should  do,  or  where  a  ])artv  is 
incompetent  to  do  so,  as  in  the  case  of  an  infant.  The  objects 
sought  by  sucii  appointments  are,  in  general,  to  provide  for  the 
safety  of  |)roperty  pending  the  litigation  which  is  to  decide  the 
rights  of  litigant  parties,  or  (hiring  the  minority  of  infants,  or 
to  preserve  property  in  danger  of  being  dissipated  or  destroyed 
by  those  to  whom  it  is  by  law  intrusted,  or  by  p(n'Sons  having 
immedi;i,t(',  but  ])artial  interests  therein.  This  equitable  remedy 
is  manifestly  founded  on  the  want  of  any  such  remedy  at  com- 
mon law. 


60    GENERAL   OUTLINE   OF    EQUITABLE   JURISDICTION.     [CH.  II. 

A  writ  of  7ie  exeat  is  a  writ  to  restrain  a  person  from  leaving 
the  jurisdiction  ;  antl  Avas  originally  used  for  purposes  of  state 
onl}',  but  is  now  extended  to  private  transactions.  It  operates 
in  the  nature  of  equitable  bail.  It  is  mostly  used  where  a  suit 
is  commenced  in  chancer}'  against  a  party  Avho,  designing  to 
defeat  the  other  of  his  just  demand,  or  to  avoid  the  justice  and 
equity  of  the  court,  is  about  to  go  beyond  the  sea,  so  that  the 
duty  will  be  endangered  if  he  goes.  This  writ  was  originally 
a  high  prerogative  writ,  but  it  has  now  become  an  ordinary 
process  of  courts  of  equity,  and  has  been  extensively  used  on 
both  sides  of  the  Atlantic. 

A  writ  of  suppllcamt  is  a  writ  granted  upon  the  complaint  of 
a  suitor  of  the  court  that  he  is  abused  and  stands  in  danger  of 
his  life,  or  is  threatened  with  death  by  another  suitor,  who  is 
thereupon  taken  into  custodv,  and  must  give  bail  (if  the  case  is 
made  out  against  him)  for  good  behavior.  It  will  be  observed 
that  this  writ  is  in  the  nature  of  process  to  find  securities  of  the 
peace ;  and  as  this  end  is  now  ordinarily  attained  by  other  means, 
the  writ  of  supplicavit  has  fallen  into  almost  total  disuse,  and 
has  been  refused  in  modern  cases  because  of  the  completeness 
of  the  common-law  remedies. 


CH.   III.] 


MAXIMS   IN   EQUITY. 


51 


CHAPTER  III. 


MAXIMS    IN    EQUITY- 


37.  Definition;   No   right   without   a 

remedy. 

38.  Equity  follows  the  Law. 

39.  ]'igilantibu.f      non      dormientibus 

.'Eqitita-'i  ■■iubreiiit. 

40.  Between  equal  equities  the  law 

will  prevail. 

41.  Equality  is  Equity. 

42.  He  who  comes  into  Equity  must 

do  so  with  clean  hands. 


43.  He  who  seeks  Equity  must  do 

Equity. 

44.  Equity  looks  upon  that  as  done 

which  ought  to  be  done. 

45.  Between   eciual  equities  priority 

of  time  will  prevail. 

46.  Equity  imputes  an  intention  to 

fulfil  an  obligation. 

47.  Equity  acts  ii>  personam. 

48.  Equity  acts  specifically. 


37.  Befiiiitioii. 

A  MAXi.M  is  the  enibodimcnt  of  u  general  truth  in  the  shape 
of  a  familar  adage.  There  are,  in  equity,  several  of  these  maxims 
in  which  the  general  principles  of  chancery  jurisdiction,  and  the 
methods  by  which  they  are  applied,  are  thus  succinctly  ex- 
pressed. 

I.  No  ri2:ht  ^vithout  a  remedy. 

The  first  of  these  maxims  is  that  equity  will  not  suffer  a  right 
to  be  without  a  remedy.^  The  principle  expressed  l)y  this  maxim 
is,  indeed,  the  foundatioji  of  equitable  jurisflictioii,  because,  as 
we  have  seen,  that  jurisdiction  had  its  rise  in  the  iiial)ility  of 
the  common-law  courts  to  meet  the  requirements  of  justice. - 

And  it  may  be  further  observed  that  equity  will  not  only  not 
suffer  a  right  to  be  unaccompanied  by  a  remed}^  but  it  will 
make   the   remedy,    when   applied,   a   complete   one.      When   a 


1  Story's  Equity  Jurisp.  §081  a; 
1  Fonb.  Eq.  B.  1  Ch.  3,  §  3,  note  f. 
For  illustrations,  see  Pelton  v.  I'lace, 
71  Vt.  430;  Swearingen  v.  Steers,  4!) 
W.  Va.  312;  and  Peterson  v.  Vander- 
burgh, 77  Minn.  2ls.  Of  course  the 
operation  of  this  maxim  may  be, 
and  is,  limited  by  olhcr  (■(|uit.il)!f 
considerations,  sueli  ;is  laeiics,  want 
of  good  faitii,  etc.,  some  of  wliicli 
will  be  found  explained  in  other 
maxims  (infra).    See  the  remarks  of 


Williams,  J.,  in  Powers'  Appeal,  125 
Pa.  ISO. 

-  Allen  V.  Elder,  76  Ca.  674;  Pratt 
r.  Kendig,  128  111.  2')3;  Towns  v. 
Smith,  115  Ind.  480;  Folsom  v.  Mc- 
Cague,  29  Neb.  124;  Britton  v.  Royal 
Arcanum,  46  N.  J.  Eq.  102;  Piper 
r.  Hoard,  107  .\.  V.  73;  Currie  v. 
Clark,  101  N.  ('.  321;  Ilelmick  v. 
Davidson,  18  Or.  456;  Livey  v.  Win- 
ton,  30  W.  ^'a.  554;  Thomson  v. 
Smith,  64  N.  H.  412. 


52 


MAXIMS   IN   EQUITY. 


[f'H.  Ill, 


court  of  chancery  accjuires  jurisdiction  for  any  purpose  it  will* 
as  a  general  rule,  proceed  to  determine  the  whole  cause,  al- 
though in  so  doing  it  may  decide  questions  which,  standing 
alone,  would  furnish  no  basis  of  equitable  jurisdiction.^  For 
example:  Courts  of  equity  have  no  jurisdiction  to  give  damages 
or  compensation  when  these  constitute  the  sole  grounds  of  the 
bill.-  But  where  the  bill  seeks  other  relief  which  can  be  had 
in  equity  alone,  and  damages  are  incidental  to  this  relief,  equity, 
having  proper  possession  of  the  cause  for  the  purpose  of  relief 
which  is  purely  equitable,  will  proceed  to  determine  the  whole 
case.^  'It  needs  no  other  court  to  finish  its  work."*  And  the 
Supreme  Court  of  the  United  States  has  gone  so  far  as  to  hold 
that  where  jurisdiction  in  equity  has  been  acquired  under  a  bill 
filed  to  enjoin,  upon  equitable  grounds,  a  sale  under  an  execu- 
tion at  law,  and  the  facts  proved  do  not  warrant  an  injunction, 
the  court  may,  under  a  cross-bill  filed  in  the  cause,  decree  the 
payment  of  the  debt  whereof  the  collection  was  sought  to  be 
enjoined.-'' 


1  Natbrown  v.  Thornton,  10  Ves. 
159;  Jesus  Coll.  v.  Bloom,  3  Atk.  262; 
McGovvin  v.  Remington,  12  Pa.  56; 
Brooks  V.  Stolley,  o  McLean,  523; 
Gunning  v.  8org,  214  111.  616;  Braith- 
vvaite  v.  Henneberry,  222  111.  50; 
Chicot  Lumber  Co.  v.  Dardell,  84 
Ark.  140;  Walters  i'.  Farmers'  Bank 
of  Va.,  76  Va.  12;  Pearson  r.  Darring- 
ton,  21  Ala.  169;  Eagan  r.  Conway, 
115  Ga.  130;  Franklin  Ins.  Co.  v.  Mc- 
Crea,  4  Green  (la.),  229;  Gates  r. 
Paul,  117  Wis.  170;  Handley's  Ex- 
ecutor V.  Fitzhugh,  1  A.  K.  Marsh.  24; 
Keeton  r.  Spradling,  13  Mo.  321; 
Armstrong  c.  Gilchrist,  2  Johns.  Cas. 
424;  Sanborn  v.  Kittredge,  20  Vt. 
632;  W^ilhelm's  Appeal,  79  Pa.  120, 
note  the  distinction  between  Mc- 
Gowin  V.  Remington  (supra)  and 
Ahl's  Appeal,  129  Pa.  63,  where  the 
equity  failed  for  want  of  proof,  and 
the  court  refused  to  retain  the  bill 
soleh'  for  the  purpose  of  enforcing  a 
common-law  demand.  See,  also, 
Burrows  r.  Leech,  116  Mich.  32, 
where  relief  was  refused,  and  Graeff 
V.  Felix,  200  Pa.  139. 


2  Story's  Eq.  Jurisp.  §  794. 

3  Ferson  i-.  Sanger,  Davies,  252; 
White  V.  Fratt,  13  Cal.  521;  Wiswall 
V.  McGown,  2  Barb.  270;  Shepherd  v. 
Sanford,  3  Barb.  Ch.  127;  Howard 
r.  Jones,  5  Ired.  Eq.  75;  Anderson 
V.  Arrington,  1  Jones  Eq.  215.  See, 
al.so,  Tayloe  r.  The  Insurance  Com- 
pany, 9  How.  404.  See  Com.  Mut. 
Ins.  Co.  V.  Union  Mut.  Ins.  Co.,  19 
How.  318;  Van  Rensselaer  v.  Van 
Rensselaer,  113  N.  Y.  207;  Martin  v. 
Martin,  44  Kan.  295;  Maryland  Home 
Ins.  Co.  V.  Kimmell,  89  Md.  437; 
Latimer  v.  Irish-American  Bank,  119 
Ga.  887;  Kawananakoa  v.  Puahi,  14 
Haw.  72;  Kelly  v.  Galbraith,  186 
111.  593;  Lyle  v.  Addicks,  62  N.  J. 
E(i.  123.  But  see  Barth  v.  Deuel,  11 
Colo.  494;  Dismal  Swamp  Land  Co. 
V.  Macauley,  85  Va.  16. 

4  Odd  Fellows'  Savings  Bank's  Ap- 
peal, 123  Pa.  3.56. 

5  Chicago,  Milwaukee  &  St.  Paul 
Ry.  Co.  r.  The  Third  Nat.  Bank  of 
Chicago.  134  U.  S.  276.  See,  also, 
North  British  and  Mercantile  Ins. 
Co.  V.  Lathrop,  25  U.  S.  App.  443; 


CH.  III.] 


MAXIMS    IN    EQUITY. 


53 


Wbenever,  therefore,  an  infringement  of  legal  rights  of  a 
civil,  as  distinguished  from  a  criminal,  nature  exists,  for  which 
there  is  no  other  adequate  remedy,  a  court  of  chancery  will  l)e 
ready  to  afford  one,  and  to  make  that  remedy  complete.^ 

Some  quahfications  are  to  be  attached  to  the  maxim  now 
under  considerati(^n.  In  tlie  first  place,  the  right  must  ha  one 
of  wiiich  nmnicipal  law  can  take  cognizance,  and  notone  whicii 
falls  merely  within  the  scope  of  moral  law.  There  are  mattei's 
in  which  a  man  is  imsw erahle  m /'oro  conscientue  ?L\oT\e  and  with 
these  equity  cannot  interfere.  Thus,  while  the  jurisdiction  of 
courts  of  equity  in  questions  of  fraud  is  very  broad,  it  neverthe- 
less does  not  pretend  to  set  aside  a  transaction  sim[)ly  because 
it  is  dishonorable  or  opposed  to  that  delicate  sense  of  light  which 
every  conscientious  man  ought  to  have.  In  other  words,  equity 
does  not  pretend  to  enforce  all  the  jirinciples  of  sound  morals. 
''  It  cannot,"  to  quote  the  language  of  the  Su[)reine  Court  of  the 
United  States,'"^  "assume  conti-ol  over  tiiat  lai'ge  class  of  obliga- 
tions called  imperfect  ol)ligations,  resting  upon  conscience  and 
moral  duty  only,  unconnected  with  legal  obligations."^ 

On  the  other  hand,  equity  will  not  dismiss  the  bill  simply  be- 
cause the  motives  of  the  })laintiff  may  be  contrary  to  the  rules 
of  morality  or  the  doctrines  of  ('hristianity.  If  the  law  con- 
cerned itself  with  the  motives  of  parties,  new  complications 
would  be  introduced  into  suits  which  might  seriously  obscure 
their  real  merits.  If  a  debt  secured  by  mortgage  is  justly  due, 
it  is  no  defence  to  a  foreclosure  that  the  mortgagee  was  animated 
bv  hostilitv  or  other  Ijad  motives.^ 


Newlove  v.  Pennock,  12.3  Mich.  260. 
See,  however,  Ahl's  Appeal,  129  Pa. 
G3;  Mack  v.  Mcintosh,  181  111.  038, 
and  Denny  v.  McCown,  .34  Oreg. 
47. 

1  See  American  School  of  Mag- 
netic Healing  v.  McAnnulty,  187  U.  8. 
94-110,  where  it  was  held  that  when 
a  postmaster  refused  to  deliver  mail 
matter  to  the  complainant,  the  latter 
was  entitled  to  an  injunction  to  pro- 
hibit the  further  withholding  of  his 
letters,  on  the  ground  that  such  re- 
lief was  the  only  adequate  remedy 
for  such  an  injury. 

-  Rees  V.   City   of   Watertown,    19 


Wall.  121.  See  also  Stewart  v.  Ste- 
wart, 207  Pa.  59;  Aspden  v.  Sedilon, 
L.  R.  1  Ex.  D.  49(5,  10  Ch.  394;  and 
Gard  v.  Gard,  108  Cal.  19;  Hoopes  v. 
Ebel,  37  Pa.  Sup.  4G7. 

3  "  I  do  not  understand  that  equity, 
even  under  the  benign  administra- 
tion of  the  longest-footed  chancellor, 
undertakes  to  enforce  moral  obliga- 
tions in  the  length  and  breadth  of 
the  Golden  Rule,  and  it  is  important 
that  we  should  keep  its  boundaries 
carefully  marked."  Per  Mitchell,  J., 
in  Hoffner's  Est.,  IGl  Pa.  331-344. 

*  South  Dakota  r.  North  Carolina, 
192  U.  S.  286.  3U. 


54 


MAXLMS    l.\    l':gi'ITV. 


[CH.  Ill, 


111  the  second  pl;ice,  equity  w'lW  not  nlFord  relief  where  there 
has  always  been  a  full,  ade(|uale  and  complete  i-emedy  at  law.* 
In  such  a  case  there  is  no  grountl  fcn^  interference  by  equity.'' 

Thus  a  bill  in  equity  will  not  lie  simply  to  recover  possession 
of  land,  because  for  this  there  is  a  complete  remedy  at  common 
law  by  ejectment.  Such  bills  liave  been  termed  "Ejectment 
Bills/'  and  ar(^  demui-rable.^  Again:  While  equity,  as  will  be 
heiv^aftcr  seen,  may  in  certain  cases  restrain  acts  of  destructive 
trespass  by  injunction,  yet  tiiis  is  done  only  in  those  cases  in 
w  liicli  ifNlress  by  the  common-law  action  of  ti'espass  would  be 
inadeijuate,  and  conse(juently  equity  will  decline  to  interfere 
whenever  tlie  damafi-es  given  in  the  common-law  action  would 
furnish  an  effectual  redress.^ 

1  Clark  V.  Allen,  87  Ala.  198;  Nease 
V.  Ins.  Co.,  32  W.  Va.  283;  Keokuk 
&  N.  W.  Ry.  Co.  V.  Donnell,  77  la. 
221;  Kilbourn  v.  Sunderland,  130 
U.  S.  505;  Ostrander  v.  Weber,  114 
N.  Y.  95;  Lime  &  Cement  Co.  v. 
Citizens'  Bank,  158  Mo.  272;  Sprigg 
V.  Com.  Tit.  Ins.  &  Tr.  Co.,  206  Pa. 
548. 

2  See  Gallagher  v.  Fayette  Co.  R. 
R.   Co.,   38   Pa.    102;   Bonebright  v. 
Pease,   3  Mich.   318;  Ellis  v.  Davis, 
109   U.   S.   485;   Kimbal   v.   Grafton 
Bank,  20  N.  H.  347;  Kyle  v.  Frost, 
29  Ind.   382;   Koockogey  v.  Flpwel- 
len,   14  Ga.  G08;  Drew  i'.  Hayne,  8 
Ala.  438;  Patterson  v.  Lane,  35  Pa. 
275;  Woodbridge  v.  Irslee,  37  N.  J. 
Eq.  397;  Foster  v.  Swasey,  2  Wood. 
&  M.  217;  Coombe  v.  Meade,  2  Cr. 
C.  Ct.   547;  Smith  v.  Short,    11   la. 
523;  Clayton  v.  Gary,  4  Md.  26;  Mc- 
Cullough    V.    Walker,    20    Ala.    389 
Wulcott  V.  Robbins,   26  Conn.   236 
Douglass    V.    Martin,     103    111.    25 
Young    V.    Young,    9    B.    Mon.    66 
Green     )".     .Spalding,     76    Va.     411 
Woi-dekolf    V.    Evers,    18    Fla.    339 
Buckner  v.  Chicago,  M.  &  A.  Ry.  Co. 
56  Wis.  403;  Vick  v.  Percy,  15  Miss 
256;  Shotwell  v.  Lawson,  30  Id.  27 
Bobb    V.    Woodman,    42    Mo.    482 
Milton   V.   Hogue,   4   Ired.   Eq.   415 
Struther  v.  Belsey,  79  111.  307;  Bru- 


ner  v.  Meigs,  64  N.  Y.  506;  Pratt  v. 
Longworth,  27  Ohio  St.  159;  Frue 
V.  Loring,  120  Mass.  507;  Cole  ?'. 
Colly,  37  N.  H.  48;  Barton  v.  Long, 
45  N.  J.  Eq.  841;  United  States  v. 
Northwest  Trading  Co.,  1  Alaska,  5; 
School  District  v.  Rice,  11  Idaho,  99; 
Southern  Pacific  R.  R.  Co.  v.  Uni- 
ted States,  200  U.  S.  341.  The  rule 
that  the  nonexistence  of  a  plain, 
speedy  and  adequate  remedy  at  law 
is  a  ground  for  equity  jurisdiction 
does  not  apply  where  the  denial  of  a 
legal  remedy  is  from  considerations 
of  public  policy.  Adams  v.  Murphy, 
165  Fed.  305. 

2  Renison  v.  Ashley,  2  Ves.  Jr. 
461;  Loker  v.  Rolle,  3  Id.  4;  White- 
head V.  Shattuck,  1.38  U.  S.  150; 
Nor.  Pac.  R.  R.  Co.  v.  Amacker,  7 
LT.  S.  App.  33-46;  Sanders  v.  Dev- 
ereux,  19  U.  S.  App.  630;  Palmer 
V.  Sinnickson,  59  N.  J.  Eq.  530; 
Cole  1'.  Mette,  65  Ark.  503;  Hecht 
V.  Colquhoun,  57  Md.  563;  Odle  v. 
Odle,  73  Mo.  289;  Whitney  r.  Ste- 
vens, 97  111.  487;  Tillmes  r.  Marsh, 
67  Pa.  510;  North  Shore  R.  R.  Co. 
V.  P.  Ft.  W.  &  C.  Ry.  Co.,  193  Pa. 
644;  O'Neil  v.  McKeesport,  201  Id. 
386;  Williams  v.  Fowler,  201  Id.  336; 
Jones  V.  Fox,  20  W.  Va.  370;  Scanlin 
V.  Conshohocken,  209  Pa.  48. 

4  Clark's     Appeal,     62     Pa.     450; 


CH.  III.] 


MAXIMS    IN    EQUITY, 


55 


To  give  still  another  illustration:  Where  personal  property 
is  wrongfully  converted,  and  a  right  to  damages  consequently 
accrues  to  the  owner,  or  where  the  cause  of  action  is  for  the 
payment  of  a  sum  of  money  mereh',  there  is  no  reason  why  a 
court  of  equity  should  be  I'csortxHl  to.^  An  action  at  law  in  such 
a  case  is  the  apijrojjriatc  I'emedy,  for  it  affords  comijlcte  redress 
for  the  wrong  complained  of.- 

Therefore  on  the  like  principle,  where  a  bill  was  filed  by  a 
purchaser  of  certain  merchandise  to  enjoin  a  seller  who  refused 
to  deliver  the  subject  of  the  sale  from  selling  to  any  one  else, 
the  bill  should  have  been  promptly  dismissed.^ 

And  even  if  the  want  of  jurisdiction  in  such  cases  is  not 
raised  by  the  pleadings,  the  court  nevertheless  may,  and  not 
infrequently  does,  sua  sponte,  take  the  objection  and  dismiss 
the  bill.'' 

This  exception  to  the  general  maxim  applies  to  the  case  of  a 
defendant  as  well  as  to  that  of  a  plaintiff,  and  if  an  action  at 
law  on  an  instrument  in  writing  can  be  fully  defended  on  the 
ground  that  it  was  obtained  by  fraud,  the  defendant  cannot  (as 
a  rule)  file  a  bill  for  the  cancellation  and  surrender  of  the  doc- 
ument.^ 

Equity,  it  may  be  here  observed,  has  no  jurisdiction  to  try 
the  title  to  a  public  office.  This  is  done  under  a  writ  of  quo 
warranto.  Therefore  a  court  of  chancery  will  not  ordinarily 
entertain  a  bill  to  enjoin  a  defendant  from  performing  the  du- 
ties of  a  public  office  on  the  ground  that  he  has  no  title  to  the 
office.  The  remedy  is  at  law."  There  may,  however,  be  excep- 
tional cases.' 


Grubb's  Appeal,  90  Id.  228;  Kistler  v. 
Weaver,  135  N.  C.  388. 

1  Raton  Water  Works  Co.  v. 
Raton,  174  U.  S.  360. 

2  Lacombe  v.  Forstall's  Sons,  123 
U.  S.  570. 

3  Mundy  v.  Brooks,  204  Pa.  232. 

4  The  Keokuk  &  N.  W.  Ry.  v. 
Donnell,  77  la.  225;  Humphreys  v. 
Atlantic  Milling  Co.,  98  Mo.  551; 
Southern  Pacific  R.  R.  Co.  v.  Uni- 
ted States,  200  U.  S.  341;  Hipp  v. 
Babin,    19    Howard,    271;    Small    v. 


Lutz,    34    Ore.    131.      Contra,    Os- 
trander  v.  Weber,  114  N.  Y.  102. 

5  Cable  V.  U.  S.  Life  Ins.  Co.,  191 
U.  S.  309;  Des  Moines  Life  Ins.  Co.  v. 
Seifert,  210  111.  157.  See  post,  sec- 
tions 472,  473,  474,  Part  III., 
Chap.  III. 

6  Att.  Gen.  v.  Clarendon,  17  Ves. 
491;  In  re  Sawyer,  124  U.  S.  213; 
Tappan  v.  Gray,  7  Hill,  259;  Coch- 
ran V.  McCleary,  22  la.  75;  Steng- 
lein  i\  Saginaw  Circuit  Judge,  128 
Mich.   440;   Blain    v.   Chippewa,    145 


7  Stenglein  v.  Saginaw  Cir.  Judge,       ford,     107     Ky.     546;     Marshall     v. 
128   Mich.   440;   Poyntz   v.   Shackel-      State  Reformatory,  201  111.  9. 


56 


MAXIMS    IN    EQUITY. 


[CH.  III. 


When  the  jurisdiction  of  courts  of  chancery  depends  upon 
precise  statutory  regulations,  the  operations  of  this  maxim  are, 
of  course,  controlled  by  the  language  of  the  particular  legisla- 
tive provision  by  which  it  is  regulated.^  And  so  where  a  case, 
formerly  cognizable  in  chancery  alone,  is,  by  statute,  brought 
within  the  scope  of  common-law  jurisdiction,  the  equitable  ju- 
risdiction may  sometimes  be  ousted.  Thus,  it  has  been  decided 
in  some  states  that  the  power  conferred  by  statute  of  calling 
the  opposite  party  as  a  witness  in  common-law  actions  has 
taken  away  the  jurisdiction  by  bills  for  discovery  in  chancery.^ 
But  under  the  statutes  in  several  other  states  and  in  England  a 
different  rule  prevails.^ 

Nor  does  the  mere  fact  that,  in  the  particular  case  before 
the  court,  the  legal  remedy  has  failed,  justify  the  interposition 
of  a  court  of  equity.  Thus,  in  Rees  v.  City  of  Watertown,^  a 
bill  was  filed  l)y  a  holder  of  certain  municipal  bonds,  setting 


Mich.  ')\);  Marshall  v.  State  Re- 
formatory, 201  111.  91;  Gilroy's  Ap- 
peal, 100  Pa.  5;  Brower  v.  Kantner, 
190  Pa.  185;  State  ex  rel.  i\  Aloe, 
152  Mo.  466;  Di.st.  Twp.  of  Grove 
V.  Myles,  109  la.  541;  Ward  v. 
Sweeney,  106  Wis.  44;  Tupper  v. 
Dart,  104  Ga.  179;  Landes  v.  Walls, 
160  Ind.  216;  Little  v.  City  of  Bes- 
.semer,  l.'iS  Ala.  127;  School  District 
V.  Cowgill,  76  Neb.  317;  People  r. 
Howe,  177  N.  Y.  499;  Howe  v.  Dun- 
lap,  12  Okla.  467;  Lawson  v.  Hays, 
39  Col.  250. 

'  See  Boyce  v.  Grundy,  3  Peters, 
215;  Oelrichs  v.  Spain,  15  Wall.  228; 
(irand  Chute  v.  Winegar,  Id.  375; 
Woodman  v.  Freeman,  25  Me.  631; 
(lark  ('.  Robinson,  58  Id.  137;  Jones 
r.  Newhall,  115  Mass.  244;  and  ante, 
pp.  21  and  22  and  notes. 

2  Hall  V.  Joiner,  1  S.  C.  (N.  S.) 
186;  Riopelle  v.  Doellner,  26  Mich. 
102;  McGough  v.  Ins.  Bank.  2  Ga. 
151;  Woodward  v.  Woodward,  148 
Mo.  241. 

•"iShotwell's  Adm'rx  v.  Smith,  20 
N.  J.  Eq.  79;  Miller  v.  U.  S.  Cas- 
ualty Co.,  61  Id.  110;  Cannon  v.  Mc- 
Nab,  48  Ala.  99;  Millsapps  v.  Pfeiffer, 


44  Miss.  805;  Lovell  v.  Gallo- 
way, 17  Beav.  1;  British  Empire 
Shipping  Co.  v.  Somes,  3  K.  &  J. 
433-  Snell's  Eq.  519;  Smith's  Out- 
line of  Eq.  483;  and  see  post,  §  175. 
See,  also,  upon  the  general  subject  as 
to  how  far  equity  will  retain  its  juris- 
diction, notwithstanding  similar  ju- 
risdiction has  been  conferred  upon 
common-law  courts:  Waldron  i'.  Sim- 
mons, 28  Ala.  629;  Bright  v.  New- 
land.  4  Sneed,  440;  King  v.  Payan, 
18  Ark.  283;  People  v.  Houghtal- 
ing,  7  Cal.  348;  Grain  v.  Barnes,  I 
Md.  Ch.  151;  Payne  v.  BuUard,  23 
Miss.  88;  Clark  v.  Henry's  Adm'r,  9 
Mo.  339;  Wells  v.  Pierce,  7  Foster, 
503;  Irick  v.  Black,  17  N.  J.  Eq. 
189;  Force  v.  The  City  of  Elizabeth, 
27  Id.  408;  Oliveira  v.  University, 
Phillips's  Eq.  69. 

On  the  other  hand,  where  equity 
powers,  which  were  not  previously 
enjoyed,  are  conferred  upon  courts 
by  statute,  such  gift  does  not  affect 
the  exercise  of  relief  under  common- 
law  forms.  Aycinena  v.  Peries,  6  W. 
&  S.  257;  Biddle  v.  Moore,  3  Pa. 
161;  Church  v.  Ruland,  64  Id.  441. 

*  19  Wall.  121. 


CH.  III.]  MAXIMS    IN    EQUITY.  57 

forth  that  he  had  obtained  judgment  thereon,  and  that  he  had 
failed  to  obtain  satisfaction  by  process  of  mandamus.  The  bill 
prayed  that  the  taxable  property  of  the  citizens,  which  was 
(it  alleged)  a  trust-fund  for  the  payment  of  the  city's  debts, 
might  be  sul)ject  l)y  the  decree  to  the  payment  of  the  com- 
plainant's judgments,  and  that  the  marshal  of  the  district 
might  be  empowered  to  seize  and  sell  so  much  of  it  as  might 
be  necessary  for  that  purpose.  But  the  court  refused  the  relief  on 
the  ground  that  the  proper  remedy  was  by  mandamus,  and  that 
the  mere  circumstance  that  that  remedy  had  failed,  in  the  par- 
ticular case,  did  not  give  a  court  of  chancery  jurisdiction.  The 
same  ruling  was  made  in  Heine  v.  The  Levee  Commissioners,^ 
where  it  was  said  that  the  total  failure  of  ordinary  remedies 
did  not  confer  upon  the  court  of  chancery  an  unlimited  power 
to  give  relief,  and  that  neither  such  failure  nor  the  hardship  of 
the  case  allows  a  court  of  equity  to  administer  abstract  justice 
at  the  expense  of  well-settled  principles. - 

But  if  a  court  of  equity  has  originally  assumed  jurisdiction 
over  a  particular  class  of  cases,  it  will  not,  as  a  general  rule,  be 
ousted  from  that  jurisdiction  simply  because,  in  the  progress  of 
common-law  improvement,  redress  comes  to  be  subsequently 
attainable  at  law.^ 

Moreover,  the  remedy  at  law  must  be  plain,  adequate,  and 
complete,  otherwise  the  jurisdiction  of  a  court  of  equity  will 
attach."*     Thus  in  Watson   v.  Sutherland,''  where  goods  in  the 

1  19  Wall.  658.  Madison  Av.  Church  v.  Madison  Av. 

2  See,  also,  Carlton  v.  Salem,  10?.  Church,  26  How.  Pr.  72;  City  of 
Mass.  14:^;  Heilman  v.  The  Union  Hartford  ik  Chipman,  21  Conn.  488; 
Canal  (^o.,  ?>!  Pa.  100;  Dowell  v-  Scott's  Adm'rx  v.  Scott,  33  (Ja.  102; 
Mitchell,  105  U.  S.  432.  Skilton  v.  Webster,  Bright.  203;  Kirk- 

3  Kemp  V.  Pryor,  7  Ves.  Jr.  249;  patrick  v.  McDonald,  11  Pa.  392; 
Bromley  v.  Holland,  Id.  19;  Wesley  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Eq. 
Church  V.  Moore,  10  Pa.  273,  279,  Cases  (Pa.),  31;  Johnston  r.  Price, 
280;  Sweeney  v.  Williams,  36  N.  J.  172  Pa.  427;  Sweeney  v.  Williams,  36 
Eq.  627;  Schroeder  v.  Loeber,  75  N.  J,  Eq.  627;  Hay  ii.  Alexandria 
Md.  195;  Maloney  v.  Terry,  70  Ark.  R.  R.  Co.,  1  Hugh,  168;  Cadigan 
190;  Herring  v.  Wilton,  106  Va.  171.  v.  Brown,  120    Mass.  403;    Richard- 

*  Jones  V.  Newhall,  115  Mass.  244;  son  v.  Brooks,  52  Miss.  118;  Court- 
Story's  Eq.  §  33.  See,  also,  Thomp-  wright  ;;.  Burns,  3  McCrary  C.  C. 
son  V.  Allen  County,  115  U.  S.  550;      60;  Clark  v.  Allen,  87  Ala.  198;  Wal- 

5  5  Wall.  74.  Followed  in  North  v.  Smith,  22  Wash.  397;  and  Hally 
V.  Peters,  138  U.  S.  281;  Flaccus  v.  v.  Ingersoll,  14  S.  Dak.  7.  See,  also, 
Smith,    199    Pa.    128,    136;    Philan      Hall  v.  Nester,  122  Mich.  141. 


58 


MAXIMS    IN    EQUITY. 


[CH.  III. 


possession  of  B.  were  levied  on  as  the  property  of  A.,  and  the 
result  of  the  levy  would  have  been  to  ruin  the  credit  and  break 
up  the  business  of  B.,  the  court  enjoined  the  execution-creditor, 
on  the  ground  that  the  damages  which  could  have  been  recov- 
ered in  a  common-law  action  by  B.  would  have  been  entirely 
inadequate  to  compensate  him  for  the  loss  he  would  sustain. 

The  jurisdiction  in  equity,  in  fine,  attaches  unless  the  legal 
remedy,  both  in  respect  to, the  final  relief  and  the  mode  of  ob- 
taining it,  is  as  efficient  as  the  remedy  which  equity  would  con- 
fer under  the  same  circumstances.^ 

In  the  third  place,  equity  is  concerned  only  with  questions 
which  affect  property,  and  it  exercises  no  jurisdiction  in  mat- 
ters of  wrongs  to  the  person  or  to  political  rights,  or  because 
the  act  complained  of  is  merely  criminal  or  illegal.- 


ker  V.  Daly,  80  Wis.  222;  Pinkum 
V.  Eau  Claire,  81  Id.  301;  Schnei- 
der V.  City  of  Rochester,  160  N.  Y. 
165;  Lovvman  v.  Crawford,  ()•)  Va. 
688;  Board  v.  Spangler,  159  Ind. 
575. 

The  adequate  remedy  at  law  which 
will  deprive  a  court  of  equity  of  juris- 
diction is  a  remedy  as  certain,  com- 
plete, prompt,  and  efficient  to  attain 
the  ends  of  justice  as  the  remedy 
in  equity.  P^arwell  v.  Colonial  Trust 
Co.,  147  Fed.  480. 

No  adequate  remedy  at  law  exists 
to  redress  the  wrong  done  to  a  rail- 
road company  by  wrongfully  dealing 
in  vast  numbers  of  its  non-transfer- 
able reduced  rate  excursion  tickets 
wliich  will  deprive  the  company  of  its 
right  to  resort  to  equity  to  restrain 
such  wrong  dealings.  Bitterman  v. 
Louisville  &  Nashville  R.  R.,  207 
U.  S.  205. 

'  By  Chief  Justice  Fuller  in  Kil- 
bourn  v.  Sunderland,  I'AO  U.  S.  514. 
See  \\'eiss  Malting  &  Elevator  Co.  v. 
Hower,  14  U.  S.  App.  210;  Walla 
Walla  V.  Walla  Walla  Water  Co., 
172  U.  S.  12;  United  States  Life 
Ins.  Co.  V.  Cable,  39  C.  C.  A.  264; 
Miller  v.  Drane,  100  W'is.  1;  Rich- 
ardson Drug  Co.  V.  Mayer,  54  Neb. 


319;  Gregg  v.  Thurber,  69  N.  H. 
480;  South  Portland  Land  Co.  v. 
Munger,  36  Oreg.  457;  Gray  v.  Citi- 
zens' Gas  Co.,  206  Pa.  303;  Hacke's 
Appeal,  101  Id.  245;  Garvey  v. 
Refractories  Co.,  213  Id.  182;  Palmer 
V.  Board  of  Education,  220  Pa. 
568;  Pa.  R.  R.  Co.  v.  Bogert,  209 
Pa.  589. 

2  World's  Columbian  Expos'n  Case, 
18  U.  S.  App.  159;  Green  v.  Mills, 
25  Id.  394;  Boston  Diatite  Co.  v. 
Florence  Manufg.  Co.,  114  Mass.  70; 
Fletcher  v.  Tuttle,  151  111.  41;  In  re 
Sawyer,  124  U.  S.  210;  Davis,  etc., 
Co.  V.  Los  Angeles,  189  U.  S.  217; 
approved  in  Dobbins  v.  Los  Angeles, 
195  U.  S.  241;  State  of  Missis- 
sippi V.  Johnson^  4  Wall.  475;  Kir- 
wan  V.  Murphy,  189  U.  S.  54;  Giles 
V.  Harris,  Id.  487;  Sparhawk  v. 
Union  Pass.  Ry.  Co.,  54  Pa.  401; 
Osborn  v.  Charlevoix  Circuit  Judge, 
114  Mich.  656;  Downes  v.  Bennett, 
63  Kan.  653;  Riverside  Co.  v.  San 
Bernardino  County,  134  Cal.  517; 
Hatfield  v.  DeLong,  156  Ind.  207; 
post,  §§412,  424,  465  and  note  to  the 
last-named  section;  Brown  v.  Mayor, 
140  Ala.  590;  City  of  Chicago  v. 
Chicago  City  Ry.  Co.,  222  111.  560; 
Shoemaker    v.    City,    129    la.    244; 


CH.  III.]  MAXIMS    IN   EQUITY.  59 

In  the  fourth  place,  equity  will  not  give  a  remedy  in  direct 
contravention  of  a  positive  rule  of  lavv.^  The  doctrine  of  equity 
upon  this  suVjject  is  thus  illustrated  by  Mr.  Justice  Blackstone: 
"Hard,"  he  says,  "was  the  case  of  bond-creditors  whose  debtor 
devised  away  his  real  estate;  rigorous  and  unjust  the  rule  which 
put  the  devisee  in  better  condition  than  the  heir;  yet  a  court 
of  equity  had  no  power  to  interfere.  Hard  is  the  common-law 
still  sulisisting  that  land  devised  or  descending  to  the  heir  should 
not  be  liable  to  simple  contract  debt.s  of  the  ancestor  or  devisor, 
although  the  money  was  lai<l  out  in  purchasing  the  very  land; 
and  that  the  father  shall  never  immediately  succeed  as  heir  to 
the  real  estate  of  the  son.  But  a  court  of  equity  can  give  no 
relief,  though  in  both  these  instances  the  artificial  reason  of  the 
law  arising  from  feudal  principles  has  long  since  ceased."' 

This  rule  is  recognized  to  its  full  extent  in  the  equity  juris- 
prudence of  the  United  States.  If  a  transaction  is  condemned 
under  the  force  of  legal  rules,  it  cannot  receive  a  more  favorable 
consideration  in  a  court  of  equity  on  account  of  any  hardship 
to  particular  parties;  and  legal  rights  acquired  l)y  the  prosecu- 
tion of  a  lawful  demand  in  a  lawful  way  will  not  be  disturbed 
by  a  chancellor.^ 

It  may  be  added  here,  that  where  the  amount  in  controversy 
is  very  trivial,  equity  will  not  take  cognizance  of  the  cause."* 

38.  II.  Equity  follows  the  Law. 

The  second  maxim  which  will  be  noticed  is  that  eciuity  follows 
the  law.  The  meaning  of  this  maxim  is  that  equity  applies  to 
equitable  titles  and  interests  those  rules  of  law  by  which  legal 

Winnett    v.    Adams,    71    Nel).    817;  v.   Hamner,   84   Va.   909;    Fricke   v. 

State  V.  Dunbar,  48  Or.  109;  Little-  Safe  Dep.  Co.,  183  Pa.  276. 
ton  V.   Burgess,   14  Wyo.   173.  ■»  Moore  v.  Lyttle,  4  J.  C.  R.  183; 

The  use  of  voting  machines  at  elec-  McNew  v.  Toby,  6  Humph.  27.    See, 

tions  relates  to  the  exercise  of  a  purely  also,  Cowan  v.  Jones,   27   Ala.   317; 

political  right  with  which  courts  of  Chapman  v.  B.  &  T.  Pub.  Co.,   128 

equity  have  no  power  to  interfere  by  Mass.  478;  and  Ocean  City  R.  R.  Co. 

injunction.      U.   S.   Voting   Machine  ?•.  Bray,  .")5  X.  J.  Eq.  101,  where  the 

Co.  V.  Hobson,  132  Iowa,  3)S.  court  refused  to  enjoin  the  construc- 

1  See  Magniac  )'.  Thomson,  1.")  How.  lion  of  a  railroad  at  the  suit  of  a 
281;  Hedges  v.  Dixon  Co.,  150  U.  S.  landowner  where  the  land  taken  was 
182-192.  worth  only  five  dollars!     Kelaher  v. 

2  3  Black.  Com.  430.  English,  62  N.  J.  Eq.  674;  Robertson 

3  Burke  v.  Murphy,  27  Miss.  167;  v.  Lewie,  77  Conn.  345;  Cliragosian  c. 
McCourtney    v.    Sloan,    15    Mo.    95;  Chutjian,   194  Mass.  504. 

State  V.  McBride,  76  Ala.  51;  Nelson 


60 


MAXIMS   IN    EQUITY. 


[CH.  III. 


titles  and  interests  are  regulated,  i)rovided  this  can  be  done  in 
a  manner  not  inconsistent  with  the  equitable  titles  and  interests 
themselves.^  Thus  equitable  estates  are  subject  to  the  same 
laws  of  inheritance  as  legal  estates,  and  their  devolution  is  the 
same.  Aiul  so,  as  at  common  law,  the  husl)and  was  entitled  ab- 
soluteh'  to  his  wife's  chattels  in  jiossession,  he  is  in  like  manner 
considered  entitled  to  chattels  of  which  she  is  the  eciuitable 
owner.  But  where  the  property  is  settled  to  the  separate  use 
of  a  feme  covert,  equity  will  not  sutler  the  title  of  the  husband 
to  be  asserted,  for  to  do  so  would  be  to  defeat  the  title  which 
has  been  created  in  ecjuity  for  the  benefit  of  the  wife.  In  the 
case  of  executory  trusts,  also,  equity  will  sometimes  refuse  to 
apply  the  strict  rules  by  which  legal  estates  are  controlled;  but 
this  is  because  such  trusts  are  in  an  inchoate  condition,  and  the 
exact  cjuality  and  duration  of  the  estate  are  not,  in  them,  strictlv 
defined. 

Equity  also  may  be  said  to  follow  the  law  when  rights  in 
equity  are  considered  barren  1  by  lapse  of  time  in  analogy  to  the 
statutes  of  limitations. - 


39.  III.  Yigilantibus  iioii  dorinieiitibus  jEquitas  subvenit. 

Another  maxim  is  rigilantibus  non  dormientibus  cequitas 
subvenit,  the  meaning  of  which  is  sufficiently  obvious.  It  is 
designed  to  provoke  diligence,  to  punish  laches,  and  to  discour- 
age the  assertion  of  stale  claims. ■"*  By  virtue  of  this  maxim 
such  claims  are  rejected  in  equity,  independently  of  any  statute 


1  A  somewhat  different  version  of 
this  maxim  was  given  in  Magniac  v. 
Thomson,  15  How.  2S1,  namely,  that 
"  wherever  the  rights  or  the  situation 
of  parties  are  clearly  defined  and  es- 
tahlisheil  by  law,  equity  has  no  power 
to  change  or  unsettle  those  rights  or 
that  situation."  And  see  Hedges  i\ 
Dixon  Co.,  LW  U.  S.  182-192.  See 
Article  in  66  (Vnt.  Law  Jr.  177. 
But  this  proposition  might,  it  seems, 
more  properly  fall  under  the  fourth 
qualification  of  the  first  maxim. 
Ante,  p.  59. 

2  See  Lansing  v.  Starr,  2  J.  V.  R. 
150;  Boone  County  v.  Burlington  & 
Missouri  River  R.  R.,  i:i9  U.  S.  m:\; 
Bickel's  Appeal,  86  Pa.  '204;  Taylor 


('.  Slater,   21   R.  I.   104;  Redford  v. 
Clarke,     100     Va.      115;     and     post, 

^  2o;!. 

•■*  Lacon  v.  Briggs,  3  Atk.  105. 
See  Ellison  v.  Moftatt,  1  Johns.  Ch. 
46;  Price's  Appeal,  54  Pa.  472;  Ger- 
mantown  Pass.  Railway  Co.  v.  Fitler, 
60  Id.  183;  AVaterman  r.  Sprague 
Mfg.  Co.,  55  C^onn.  554;  Truesdell  v. 
Lehman,  47  N.  J.  Eq.  218;  Cooke 
r.  Barrett,  155  Mass.  413;  Davidson 
V.  Mayhew,  1()9  Mo.  258;  Wolf  v. 
(Ji-eat  Falls  Water  Co.,  15  Montana, 
49;  Raymond  v.  Flavel,  27  Oregon, 
219;  Hall  r.  Nash,  33  Colo.  508: 
Smick  r.  Beswick,  113  Ky.  439; 
Sawyer  i\  Cook,  188  Mass.  163; 
Stevenson  r.  Boyd,  153  Cal.  630. 


CH.  III.] 


MAXIMS    IN    EQUITY. 


61 


of  limitations.^  In  many  cases  e{iuitable  relief  depends  upon 
the  discretion  of  the  chancellor,  and  the  laches  of  the  complain- 
ant is  often  one  of  the  most  important  of  the  elements  which 
are  taken  into  consideration  when  that  discretion  is  exercised." 
Courts  of  equity  sometimes  consider  themselves  bound  by  the 
statutes  of  limitation;  in  other  cas6\s  they  act  by  analogy  only.^ 
But  lapse  of  time  and  the  staleness  of  a  claim  may  constitute  a 
defence  in  courts  of  ecjuity  even  where  no  statute  of  limitation 
governs  the  case.  This  defence  is  peculiar  to  chancery  courts, 
which  in  such  cases  act  upon  their  own  inherent  doctrine  of 
discouraging,  for  the  peace  of  society,  antif}uated  demands,  and 
refuse  to  interfere  where  there  has  been  gross  laches  in  prose- 
cuting the  claim,  or  long  acc[uiescence  in  the  assertion  of  ad- 
verse rights."* 


1  Smith's  Eq.  19;  Hill  on  Trustees, 
169,  note;  Smith  v.  Turley,  32  W.  Va. 
14. 

2  See  Ruckman  v.  Cory,  129  U.  S. 
387;  Hovey  v.  Bradbury,  112  Cal. 
620,  and  Lamberton  v.  Yoimians,  S4 
Minn.  109,  for  cases  in  which  it  was 
held  that  the  maxim  ought  vol  to  be 
applied. 

•5  See  and  consider  FuUwood  v.  Full- 
wood,  9  Ch.  Div.  176;  Richardson  r. 
Gregory,  126  111.  166;  Williams  r. 
Neely,  134  Fed.  1. 

4  Badger  v.  Badger,  2  Wall.  94; 
Speidel  v.  Henrici,  120  U.  S.  387; 
Richards  r.  Mackall,  124  Id.  183;  Un- 
derwood V.  Dugan,  139  Id.  3S3; 
Galliher  v.  Cadwell,  14.5  Id.  372; 
Abraham  v.  Ordway,  158  Id.  420; 
Wheeling  Bridge  and  Terminal  Ry. 
Co.  V.  Reymann  Brewing  Co.,  32  C. 
C.  A.  577;  Gib.son  v.  Herriott,  55 
Ark.  85;  Rabe  v.  Dunlap,  51  N.  .J.  Eq. 
40;  Wagner  v.  Sanders,  62  S.  C  73. 
It  has  been  said  that  the  rule  of  the 
bar  of  the  statutory  period  in  equity 
seems  to  be  that  an  equitable  remedy 
to  enforce  a  legal  vested  right  or  in- 
terest, as  distiiiguisluMl  from  a  mere 
equitable  right,  is  not  affected  by 
laches  merely,  short  of  the  common- 
law  bar.     In  re  Maddever,  27  Ch.  D. 


527-532;  Clarke  v.  Hart,  6  H.  L. 
Cas.  646-654;  Campbell  i\  Seaman, 
63  N.  Y.  .584-5;  Hale  r.  Coffin,  57 
C.  C.  A.  528.  See,  also,  Agens  v. 
Agens,  50  N.  J.  Eq.  566;  ('olton  v. 
Depew,  60  Id.  4.54;  Burne  v.  Par- 
tridge, 61  Id.  434;  Gordon  ?;.  John- 
son, 186  111.  18;  Baker  v.  Cummings, 
1()9  U.  8.  206;  Speck  r.  Pullm.  Pal. 
Car  Co.,  121  III.  33;  St.  Paul,  Minn. 
&  M.  Ry.  Co.  r.  Eckel,  82  Minn.  278; 
McMillan  r.  McMillan,  184  111.  230; 
Loomis  V.  Missouri  Pac.  Ry.  Co., 
165  Mo.  469;  Old  Times  Co.  v. 
Casey,  104  Ky.  616;  Loomis  v.  Rosen- 
thal, 34  Oreg.  585;  Stevenson  v. 
Boyd,  153  Cal.  630. 

•'  But  the  weight  of  authority  is  the 
other  way,  and  we  consider  the  better 
rule  to  be  that  even  if  the  statute  of 
limitations  be  made  applicable  in  gen- 
eral terms  to  suits  in  equity  and  not 
to  any  particular  defense,  the  defend- 
ant may  avail  himself  of  the  laches 
of  the  complainant  notwithstanding 
the  time  fixed  by  the  statute  has  not 
expired."  Patterson  v.  Hewitt,  195 
U.  S.  319.  See  Scruggs  v.  Decatur 
Mineral  &  Land  Co.,  86  Ala.  173; 
Bliss  V.  Prichard,  67  Mo.  181;  Kline 
r.  Vogel,  90  Mo.  239,  and  Calhoun  v. 
Millard,  121  N.  Y.  69. 


62 


MAXIMS    IN    EQUITY, 


[CH.  III. 


"A  court  of  equity,"  said  Lord  Camden,  ''lias  always  refused 
to  aid  stale  demands  where  a  party  slept  upon  his  rights  and 
acquiesced  for  a  great  length  of  time.  Nothing  can  call  forth 
this  court  into  activity  but  conscience,  good  faith,  and  reason- 
abl(>  diligence;  where  these  are  wanting  the  court  is  passive 
and  does  nothing.  Laches  and  neglect  are  always  discounte- 
nanced; and  therefore  from  the  beginning  of  this  jurisdiction 
there  was  always  a  limitation  to  suits  in  this  court."  ^ 

But  this  maxim  must  not  be  understood  as  operating  to  de- 
prive a  plaintiff  from  obtaining  redress  in  equity  by  reason  of 
delay,  when  the  wrong-doing  has  been  secret  and  has  been 
fraudulently  concealed.  In  such  a  case  the  maxim  has  no  ap- 
plication.^ 

It  may  be  added,  that  as  against  the  Government  laches  can- 
not be  set  up  as  a  defence  in  equity  any  more  than  the  bar  of 
the  statute  can  at  law;  ^  and,  also,  that  laches  may  not  be  im- 
puted so  as  to  deprive  a  party  of  his  equitable  rights,  when  his 
delay  has  caused  no  harm.'* 

40.  IV.  Between  equal  Equities  the  law  will  prevail.^ 

If  two  persons  have  each  an  equally  good  equitable  right, 
but  one  of  them  has  the  legal  title  to  the  subject  of  the  dispute, 
equity  will  not  interfere,  but  leave  them  to  the  courts  of  law, 
when,  of  course,  the  holder  of  the  legal  title  will  prevail.    Thus, 


I  Smith  V.  Clay,  3  Bro.  C.  C.  6:39. 
See  Rabe  v.  Dunlap,  51  N.  J.  Ch.  46, 
where  Lord  Camden  is  quoted;  New 
York  City  v.  Pine,  185  U.  S.  95; 
Tozier  v.  Brown,  202  Pa.  364;  Wiggin 
V.  Machine  Co.,  68  N.  H.  14,  and 
Covington  v.  Griffin's  Admr.,  98  Va. 
124.  In  this  last  case  it  was  justly 
remarked  that  equity  requires  dili- 
gence in  the  prosecution  as  well  as 
the  institution  of  suits.  See,  also, 
Hammond  v.  Hopkins,  143  U.  S.  250; 
Hemmick  v.  Standard  Oil  Co.,  33  C. 
C.  A.  547;  Groome  v.  Belt,  171  Pa.  74; 
Smith  V.  Turley,  32  AV.  Va.  17;  Ry- 
ason  V.  Dunten,  164  Ind.  S5;  Dex- 
ter V.  MacDonald,  196  Mo.  ;',73.  The 
maxim  has  been  applied  as  against 
purchasers  for  value,  without  notice. 
Logan  V.  Neill,  128  Pa.  469. 


2  Bulli  Coal  Mining  Co.  v.  Osborne, 
[1899]  A.  C.  351. 

3  United  States  v.  Dalles  Military 
Road  Co.,  140  U.  S.  632.  But  see 
Bradford  v.  New  York  &  Pa.  Telph. 
&  Tel.  Co.,  206  Pa.  582. 

•»  White  r.  Patterson,  139  Pa.  429; 
Ellis  V.  Southwestern  Land  Co.,  102 
Wis.  400;  Newman  v.  Newman,  152 
Mo.  398;  French  v.  Woodruff,  25 
Colo.  339;  Brown  v.  Ward,  110  Iowa, 
123. 

5  Farmers'  and  Merchants'  Bank 
V.  Farwell,  19  U.  S.  App.  261-263; 
Westinghouse  v.  German  Nat.  Bank, 
196  Pa.  249  (certificate  of  stock); 
Forman  v.  Brewer,  62  N.  J.  Eq.  748; 
Enos  V.  Stewart,  138  Cal.  112;  Snook 
V.  Zentmyer,  91  Md.  485;  Webb  v. 
Hancher,  127  la.  269. 


CH.  III.]  MAXIMS   IN   EQUITY.  63 

if  a  purchaser  for  a  valuable  consideration,  without  notice  of  a 
prior  equitable  right,  obtains  the  legal  estate  at  the  time  of  his 
purchase,  he  will  be  entitled  to  priority  in  equity  as  well  as  at 
law.^ 

Indeed,  the  maxim  in  question  goes  further;  for  the  bona  fide 
holder  of  an  equity  who  has  acquired  it  for  value  without  no- 
tice of  a  prior  equity  may,  even  after  he  has  received  notice  of 
the  prior  equity,  obtain  an  advantage  by  getting  in  any  out- 
standing legal  title;  and  of  this  advantage  a  court  of  chancery 
will  not  ordinarily  deprive  him.' 

A  good  illustration  of  the  effect  which  equity  gives  to  the 
acquisition  of  the  legal  title  in  those  cases  in  which  the  equities 
are  equal,  is  afforded  by  Thorndike  r.  Hunt.^  There  a  trustee, 
under  two  different  settlements,  having  misappropriated  the 
funds  of  one,  replaced  them  by  a  transfer  of  funds  belonging  to 
the  other.  In  a  suit  instituted  by  the  cestui  que  trust  under  the 
first  settlement,  the  trustee  transferred  the  money  into  court, 
and  the  fund  was  treated  as  belonging  to  that  estate,  the  legal 
title  consequently  resting  in  the  accountant  general  for  the  pur- 
poses of  that  trust.  The  ciuestion  was  whether  the  cestui  que 
trust  under  the  second  settlement  had  a  right  to  follow  this 
fund,  and  it  was  held  that  he  had  not,  because  the  transfer 
being  without  notice  and  for  value  (i.  e.,  in  discharge  of  the 
debt  due  by  the  defaulting  trustee)  the  cestui  que  trust  under 
the  first  settlement  had  just  as  strong  an  equity  to  retain  the 
fund  as  the  cestui  que  trust  under  the  second  settlement  had  to 
follow  it;  and  it  therefore  followed  that  the  circumstances  of 
the  legal  title  being  held  by  the  accountant  general  for  the 
former  was  enough  to  create  a  preference  in  his  favor.'* 

41.  V.  Equality  is  Equity. 

Another  equitable  maxim  is  that  equality  is  (M|uity.  This 
may  be  illustrated  by  the  manner  in  which  the  court  acts  in  the 
case  of  a  power  in  trust,  wliere  the  donee  of  the  pow(M*  who 
has  the  option  of  selecting  out  of  a  class  has  failed  to  exercise 

1  Note  to  Basset  r.  Nosworthy,  2  Bank  of  Australia,  L.  R.  5  P.  C.  92, 
Lead.    Cas.    Eq.    5.      See,    however.  111;  The  Dueber  Watch  Case  Mfg. 
Central  Tru.st  Co.  ?'.  West  India  Imp.  Co.  v.  Dougherty,  (>2  Ohio,  589. 
Co.,  169  N.  Y.  :U4;  Coffman  v.  Lig-  3  3  DeG.  &  Jo.  56;^. 

gett,  107  Va.  418.  <  Snell's  Eq.  18,  19;  Note  to  Basset 

2  Taylor  r.  Russell  [1S91],  1  Ch.  8;       v.  Nosworthy,   2   Lead.    Cas.    in   Eq. 
Blackwood  v.  The  London  Chartered      11. 


64 


MAXIMS    IN    EQUITY. 


[CH.  III. 


his  discretion.'  In  such  a  case,  if  there  is  more  than  one  in- 
tended beneficiary,  equity  will  divide  the  property  equally 
among  all. 

So,  also,  in  the  case  of  joint  purchasers  the  leaning  of  courts 
of  equity  is  against  the  right  of  survivorship,  and  in  favor  of 
treating  the  parties  as  interested  in  the  subject-matter  of  the 
purchase  as  tenants  in  common,  in  proportion  to  the  sums 
respectively  contributed  by  each.^ 

42.  VI.  He  who  comes  into  Equity  must  do  so  wit  It  clean 
hands. 

This  maxim  has  also  been  expressed,  "he  that  hath  com- 
mitted ini(iuity  shall  not  have  equity."  ^  Thus  a  party  who 
seeks  to  set  aside  a  transaction  on  the  ground  of  fraud  must 
himself  be  free  from  any  participation  in  the  fraud,  if  he  desires 
relief  in  equity;'*  and,  on  the  same  principle,  equity  will  not 
lend  its  aid  to  assist  a  gambling  transaction,^  or  to  enforce  pen- 


1  See  post,  Part  I.,  Chap.  II.,  §77. 

2  See  Lake  v.  Gibson,  1  Lead.  Cas. 
Eq.  177,  and  notes.  See,  also,  for  a 
general  recognition  of  the  maxim, 
Girartl  Co.  v.  Cooper,  4  U.  S.  App. 
631;  Leighton  v.  Young,  10  Id.  .'AW; 
and  Woddrop  v.  Weed,  154  I'a. 
307-313;  Smith  v.  Moors,  215  Pa. 
421. 

3  Francis  5.  See  Cadman  r.  Hor- 
ner, 18  Ves.  10;  Creath  v.  Sims,  5 
Howard,  192;  Barnes  v.  Starr,  64 
Conn.  136-154;  McCusker  v.  Spier, 
72  Id.  626;  McAllister  v.  Hender.son, 
134  Ind.  459;  Milhous  v.  Sally,  43  S. 
C.  324;  Palmer  v.  Harris,  60  Pa.  160; 
Reynolds  v.  Poland,  202  Id.  647-648; 
Joseph  V.  Macowsky,  96  Cal.  518; 
Paulk  V.  Mayor,  etc.,  of  Sycamore, 
104  Cia.  24,  s.c.  728;  Shorner  v.  Spear, 
92  N.  C.  148;  Respass  v.  Jones,  102  Id. 
5;  Shattuck  v.  Watson,  53  Ark.  147; 
Booker  v.  Wingo,  29  S.  C.  116;  Bar- 
nett  V.  Barnett,  83  Va.  504;  McDonald 
V.  Buckstaff,  56  Neb.  88;  Troadwoll  v. 
Torbert,  119  .\la.  279;  Brink.'rhoU'  r. 
Ransom,  57  .\.  J.  \'a\.  '.Wl;  Insurance 
Co.  r.  Connelly,  104  Tenn.  93;  Raasch 
V.  Raasch,  100  Wis.  400;  Imp.  Co.  v. 


Tower's  Ex.,  etc.,  158  Mo.  282;  Wat- 
son ('.  Roller  Skating  Rink  Co.,  177 
111.  203;  Pittsburg  Ry.  Co.  v.  Croth- 
ersville,  159  Ind.  330. 

4  See  Wheeler  v.  Sage,  1  Wall.  518; 
Matthews  v.  Weiler,  57  Ark.  606. 
The  maxim  will  not,  however,  be 
applied  where  the  creditor  in  a  usuri- 
ous contract  seeks  to  collect  the  debt 
with  legal  interest  only. 

When  a  bill  in  equity  seeking  to 
impress  certain  securities  with  a  trust, 
alleges  that  the  title  was  taken  in  de- 
fendant's name  without  his  knowl- 
edge, that  he  held  them  in  trust  for 
the  orator,  and  that  he  secretly  took 
them  into  his  possession  and  refused 
to  surrender  them,  and  the  issue 
made  by  the  pleadings  is  in  respect 
of  the  title  to  the  property  without 
reference  to  any  fraudulent  convey- 
ance, the  orator  cannot  be  denied  re- 
lief, because  his  evidence  revealed  a 
fraudulent  purpo.se  to  avoid  taxation 
by  placing  the  .secvuuties  in  defend- 
ant's name.  Monahan  v.  Monahan, 
77  Vt.  13;!. 

5  Albertson  v.  Laughlin,  173  Pa. 
529.    Or  the  recovery  of  money  paid 


CH.  111.] 


MAXIMS    IN    EQUITY, 


65 


allies,  or  to  aid  in  tlie  harsh  assertion  of  legal  rights/  or  to  set 
aside  a  conveyance  executed  to  defraud  third  parties.' 

And  the  court  will  sometimes  act  sua  sponte.^ 

Upon  the  same  principle,  when  one  of  several  confederates  to 
a  fraudulent  transaction  has  actiuired  the  result  of  the  fraud, 
ecjuity  will  not  aid  the  others  in  obtaining  their  share  of  the 
spoils."* 

About  the  earliest  illustration  of  this  doctrine  is  almost  tra- 
ditional in  the  famous  case  of  The  Highwayman.  Lord  Kenyon 
once  said,  by  way  of  illustration,  that  he  would  not  sit  to  take 
an  account  between  two  robbers  on  Hounslow  Heath,  and  it  has 
been  ciuestioncd  whether  the  legend  in  regard  to  the  highway- 
man did  not  arise  from  that  saying.  It  seems,  however,  that  the 
case  was  a  real  one.  The  highwayman  did  file  a  bill  in  equity 
for  an  accounting  against  his  partner;  but  the  bill  (it  is  needless 
to  say)  was  promptly  dismissed;  and,  moreover,  the  plaintiff's 
solicitors  were  summarily  dealt  with  by  the  court  as  for  a  con- 
tempt in  bringing  such  a  case  before  it.^ 

Of  course,  this  maxim  only  applies  to  the  particular  transac- 
tion under  consideration,  for  the  court  will  not  go  outside  of 
the  case  for  the  purpose  of  examining  the  conduct  of  the  com- 
plainant in  other  matters,  or  questioning  his  general  character  for 
fair  dealing.*^    Nor  is  it  every  prosecution  of  an  unfounded  claim 


in    such    a    transaction.      Baxter    v. 
Deneen,  98  Md.  181. 

1  See  Lessig  v.  Langton,  Brightly's 
R.  191;  Kahn  v.  Walton,  46  Ohio, 
213;  McCUntock  v.  Loisseau,  .31  W. 
Va.  870;  Bank  v.  Adrian,  116  N.  C. 
537;  Chute  v.  Quincy,  156  Mass.  189; 
'post,  §  181,  and  cases  cited;  CUnton 
V.  Myers,  46  N.  Y.  511. 

2  Brown  v.  Brown,  66  Conn.  493- 
499;  see  fost,  Fraud  -on  Creditors, 
§  248;  Creighton  v.  Roe,  218  111.  619; 
Brutsche  v.  Bowers,  122  la.  226; 
Massi  ('.  Lavine,  139  Mich.  140. 

3  Pacific  Live  Stock  Co.  v.  Centry, 
38  Ore.  275. 

•«  Johns  V.  Norris,  22  N.  J.  Eq.  102; 
Walker  r.  Hill's  Executors,  Id.  513. 
See  also  Allen  v.  Berry,  50  Mo.  90; 
Musselman  v.  Kent,  33  Ind.  452;  Hi- 
bernia  Society  v.  Ordway,  38  Cal.  679; 

5 


Hunt  V.  Rowland,  28  Iowa,  349; 
Marcy  v.  Dunlap,  5  Lans.  365;  Gan- 
nett r.  Albree,  103  Mass.  372;  Leon- 
ard r.  Poole,  114  N.  Y.  371;  Mc- 
Clintock  V.  Loisseau,  31  W.  Va. 
865;  Schermerhorn  v.  De  Chambrun's 
Admr.,  26  U.  S.  App.  212;  Central 
Trust  Co.  r.  Respass,  112  Ky.  606. 

5  McMullen  v.  Hoffman,  174  U.  S. 
639,  654,  citing  1  Lindley  on  Part- 
nership (5th  ed.)^  94,  note  n.,  9  Law 
Quarterly  Review  (London),  pp. 
105  and  197;  Lindley  (6th  ed.), 
101. 

"  Cited  in  City  of  Chicago  v.  Stock 
Yards  Co.,  164  111.  224-238,  and  in' 
Shaver  v.  Heller  &  Merz  Co.,  48 
C.  C.  A.  49;  Pitzole  v.  Cohn,  217  111. 
30;  Kinner  v.  Ry.  Co..  69  Ohio  St. 
339;  Camors  Co.  v.  McConnell,  140 
Fed.  Rep.  412. 


66 


MAXIMS    IN    EQUITY  . 


[CH.  III. 


that  will  bar  a  man  from  coming  into  a  court  of  equity;  there 
must  be  wilful  misconduct  in  regard  to  the  matter  in  litigation.^ 

It  haa  been  held  in  some  cases  that  equity  ^^'iIl  not  necessarily 
refuse  its  aid  sim})ly  l)ecause  the  fund  or  other  subject-matter 
in  respect  of  which  the  relief  is  asked  may  have  been  originally 
created  by  an  illegal  transaction.  Instances  of  this  will  be  found 
in  Sharpe  v.  Taylor,^  Brooks  v.  Martin,^  and  other  cases,  Eng- 
lish and  American,  cited  in  the  note.^ 

But  the  doctrine  in  Sharpe  v.  Taylor  and  kindred  cases  is  not 
to  be  extended.  The  whole  subject  was  reviewed  by  Mr.  Jus- 
tice Peckham  in  McMullen  v.  Hoffman,^  where  the  distinction 
was  thus  expressed:  ''In  the  case  before  us  the  cause  of  action 
grows  directly  out  of  the  illegal  contract,  and  if  the  court  dis- 
tributes the  profits  it  enforces  the  contract  which  is  illegal. 
But  where  A  claims  money  from  B,  although  due  upon  an  ille- 
gal contract,  and  B  acknowledges  the  obligation  and  waives 
the  defence  of  illegality  and  pays  the  money  to  a  third  party 
upon  his  promise  to  pay  it  to  A,  the  third  party  cannot  success- 
fully defend  an  action,  brought  by  A  to  recover  the  money,  by 
alleging  that  the  original  contract  between  A  and  B  was  ille- 
gal. This  is  the  principle  decided,  and  we  think  correctly  de- 
cided, in  the  cases  cited." 

Under  the  same  maxim,  too,  fall  cases  where  equity  has  re- 
fused its  aid  to  unconscionable  demands  or  defences,  and  has 
left  the  parties  to  their  relief  at  law.® 

43.  VII.  He  who  seeks  Equity  must  do  Equity. 

The  usual  illustration  of  this  maxim  is  the  case  of  a  borrower 


iSnell's  Prin.  Eq.  25;  Lewis  and 
Nelson's  Appeal,  67  Pa.  166;  Meyer 
V.  Yesser,  32  Ind.  294;  Bateman  v. 
Fargason,  4  Fed.  Rep.  32;  Foster  v. 
Winchester,  92  Ala.  497;  Miller  v. 
Enterprise  Co.,  142  Cal.  213. 

2  2Phil.  Ch.  801. 

3  2  Wall.  70,  81. 

<>Sykes  v.  Beadon,  11  Ch.  D.  170; 
Farmer  v.  Russell,  1  Bos.  &  Pul.  296; 
McBlair  v.  Gibbs,  17  How.  237;  The 
Chas.  E.  Wiswall,  30  C.  C.  A.  342; 
Hardy  r.  Jones,  63  Kan.  8;  TIarerow 
V.  Gardiner,  69  Ark.  6. 

5  174  U.  S.  639.  See  particularly 
page  660.    See  also  Snell  v.  Dwight, 


120  Mass.  9;  Durham  v.  Presby,  Id. 
285;  Gray  v.  Oxnard  Bros.,  59  Him, 
387;  Wiggins  v.  Bisso,  92  Tex.  219; 
Unckles  v.  Colgate,  148  N.  Y. 
534;  Woodson  v.  Hopkins,  85  Miss. 
171. 

6  See  Philada.  Trust  Co.  v.  Coal  and 
Iron  Co.,  139  Pa.  544.  See  in  this 
connection  Brown  v.  Davis,  23  U.  S. 
App.  579-596,  where  the  court  dis- 
missed the  bill  because  of  reckless 
charges  of  fraud  and  reckless  evi- 
dence in  support  thereof.  It  would 
seem  that  a  suitor  in  chancery  must 
not  only  come  into  court  with  clean 
hands,  but  must  keep  them  so. 


CH.  III.] 


MAXIMS   IN   EQUITY. 


67 


of  money  on  usurious  interest,  wlio  comes  into  a  court  of  equity 
to  ask  for  relief  by  liaving  the  transaction  set  aside.  Equity  will 
not  afford  him  redress  except  upon  the  terms  of  his  returning  the 
amount  actually  borrowed  with  lawful  interest,  because  it  is  as 
equitable  that  the  person  who  has  loaned  the  money  should  have 
the  amount  with  lawful  interest  returned  to  him,  as  that  the 
borrower  should  be  relieved  from  his  unjust  obligation  to  pay  a 
usurious  rate.^  So  also  a  mortgagor  who  files  a  bill  to  redeem, 
must  offer  to  do  equity  by  paying  the  mortgagee  his  debt,  in- 
terest, and  costs,^  and  he  cannot  insist  that  the  del^t  is  barred 
by  the  statute.^  Another,  and  a  striking  illustration  of  this 
maxim,  is  found  in  the  rule  that  when  a  husband  .comes  into 
chancery  for  the  purpose  of  getting  in  his  wife's  equitable 
property,  he  will  not  be  assisted  except  upon  the  terms  of  mak- 
ing a  reasonable  settlement  upon  his  wife."*  Again,  when  a  bona 
fide  possessor  of  property  improves  it  in  good  faith  and  under 
an  honest  belief  of  ownershiii,  equity  in  some  cases  may  refuse 
to  aid  the  real  owner  in  ousting  him,  save  upon  terms  of  allow- 
ance for  such  expenditures.^"'  Still  again;  when  a  property 
owner  seeks  to  enjoin  the  collection  of  a  tax  on  the  ground  that 
the  amount  is  excessive,  he  must  pay  to  the  proper  officer  the 
amount  which  he  concedes  to  be  properly  due.''  Other  illus- 
trations of  the  application  of  this  maxim  will  be  found  in  the 
authorities  cited  in  the  not(\^    Among  these,  A\'illard  v.  Tay- 


1  Fanning  v.  Dunhiim,  o  JohuH.  Cli. 
122.  See  also  Sporrer  v.  Eifler,  1 
Heisk.  63.3;  Corby  r.  Bean,  44  Mo. 
379;  Ruppel  r.  Mi.ssoiu'i,  etc.,  Assn., 
158  Id.  ()i;!;  Mack  v.  Hill,  2S  Mont. 
99;  Thomas  v.  Coffin,  23  U.  S.  App. 
653;  Hubbard  r.  Tod,  171  U.  S.  501; 
American  Freehold,  etc.,  Co.  v.  Jeffer- 
son, 09  Miss.  770;  Hanchey  r.  South- 
ern Bldg.  Assn.,  140  Ala.  24(3. 

-  Lanning  v.  Smith,  1  Pars.  Ec(.  C. 
16;  Lewie  v.  Hallman,  53  S.  C.  IS; 
but  see  Savoie  v.  Me^/ers,  40  La.  Ann. 
677;  Meetz  v.  Mohr,  111  Cal.  667. 

3  Oakman  v.  Walker,  69  ^'t.  :!44. 

"•See  §  109  <■/  seq.  See,  on  the 
general  maxim,  Secrest  v.  MoKenna, 
1  Strobh.  Eq.  3,")6;  liieluud.son  v. 
Linuey,  7  B.  Mon.  571;  .Mumford 
V.  Am.  Life  Ins.  Co.,  4  Corns.  463' 


Buena  Vista  Co.  v.  Tuohy,  107  Cal. 
24.3. 

5  Putnam  v.  Tyler,  117  Pa.  588. 
But  such  an  exerci.se  of  jurisdiction 
is  on  the  border-line,  imd  sliotild  be 
most  cautiously  used;  Hunter  v.  Coe, 
12  X.  D.  505. 

0  People's  Nat.  Bk.  r.  Marye,  191 
U.  S.  285;  Smith  v.  Auditor  (leneral, 
20  Mich.  398;  Merrill  v.  Humphrey, 
24  Id.  170. 

7  Comstock  V.  Johnson,  46  X.  Y. 
615;  Loder  v.  Allen,  50  N.  J.  Eq.  631- 
637;  Morrison  v.  Hershire,  32  la.  271; 
Bo;H-d  of  Montgomery  County  ?'. 
Elston.  32  Tnd.  27;  l\-an  v.  Charlton, 
23  Wis.  590;  Creed'  v.  Scruggs,  1 
Heisk.  590;  Wales  r.  Coffin,  105  Ma.ss. 
32S;  Lohnian  r.  Crouch,  19  Cratt. 
331-  Carpenter  v.  Plagge,  192  111.  82; 


68 


MAXIMS   IN   EQUITY, 


[CH. in. 


loo  ^  may  be  particularly  referred  to.  In  that  case  it  appeared 
that  in  1854  the  plaintiff  had  leased  from  the  defendant  a  hotel 
at  Washington  for  a  term  of  ten  years,  with  the  option  to  the 
lessee  of  purchasing  the  fee  at  a  fixed  price  at  any  time  within 
the  term.  At  the  date  of  the  lease  gold  and  silver  coin  was 
the  only  legal  tender.  Subsequently  the  legal  tender  acts  were 
passed  and,  in  April,  1864,  just  prior  to  the  expiration  of  the 
term,  the  lessee  elected  to  exercise  his  option  to  buy,  and  ten- 
dered the  price  in  paper  money,  which  was  at  that  time  much 
depreciated.  On  the  refusal  of  the  lessor  to  accept,  the  lessee 
filed  a  bill  to  enforce  specific  performance  of  the  contract.  It 
was  held  that  he  was  entitled  to  a  decree,  but  only  on  condition 
that  the  stipulated  sum  should  be  paid  in  coin. 

The  maxim  is  applicable  to  a  defendant  as  well  as  to  a  plain- 
tiff; and  a  party  who  seeks  to  avail  himself  of  an  eciuitable  de- 
fence must  stand  the  test  of  the  doctrine  under  consideration, 
as  well  as  one  who  appears  as  plaintiff"  in  a  cause  .^ 


44.  Vlll.  Equity  looks  upon  that  as  done  which  ought  to 
be  done.^ 

This  is  a  very  important  maxim,  and  one  which  lies  at  the 
foundation  of  many  of  the  great  doctrines  in  ecjuity.  For 
the  purpose  of  reaching  exact  justice,  eciuity  will  frequently 
consider  that  property  has  assumed  certain  forms  with  which 
it  ought,  in  justice,  to  be  stamped,  or  that  parties  have  per- 
formed certain  duties,  or  carried  out  the  terms  of  contracts,'* 


Miller  v.  Miller,  148  Mo.  113;  Collins, 
etc.,  V.  Green,  10  Okla.  244;  McClain 
V.  Batton,  50  W.  Va.  121;  Vick  v. 
Vick,  126  N.  C.  123.  See  remarks  of 
Ch.  J.  Waite  in  Fosdick  v.  Schall,  99 
U.  S.  253;  Gibson  v.  Herriott,  55  Ark. 
85;  Thomas  v.  Evans,  105  N.  Y.  601; 
Green  v.  The  Coast  Line  R.  R.  Co., 
97  Ga.  15-22;  Charlestown  Ry.  Co.  v. 
Hufihcs,  105  Id.  1 ;  Hayes  v.  Southern, 
etc.,  Asstn.,  124  Ala.  663;  Trigg  r. 
Jones's  Admr.,  102Ky.  44;  O'Connell 
V.  O'Conor,  191  111.  215.  For  a  case 
where  the  maxim  was  not  applied, 
see  Bowdre  v.  Carter,  64  Miss.  221. 

1  8  Wall.  557.     But  .see  McGoon  v. 
Shirk,  54  111.  408. 

2  Tongue  v.  Nutwell,  31  Md.  302. 


See  also  Brown  v.  Lake  Superior  Iron 
Co.,  134  U.  S.  530,  and  the  remarks  of 
Brewer,  J.,  on  p.  535. 

.t  "  When  chancery  interposes  to 
compel  the  performance  of  an  act 
which  has  been  covenanted  to  be 
performed,  it  always  treats  the  sub- 
ject as  if  it  had  been  performed  at 
the  time  contracted."  Reeve's  Dom. 
Relations,  tit.  Chancery,  446;  Jordan 
r.  Cooper,  3  S.  &  R.  585;  Bridgeport 
Electric  &  Ice  Co.  v.  Meader,  30  U.  S. 
App.  581-588;  Clemmons  v.  Cox,  116 
Ala.  507;  Cockrell  v.  Cockrell,  79 
Miss.  569. 

*  See  Ross  v.  Army  &  Navy  Hotel 
Co.,  34  Ch.  D.  43;  //;  re  Queensland 
Land  &  Coal  Co.,   Davis  v.  Martin, 


CH,  III.]  MAXIMS   1>J    EQUITY.  69 

which  they  ought,  in  justice,  to  fulfil;  '  and  will  regulate  the  en- 
joyment and  transmission  of  estates  and  interests  accordingly, 
'i  hus,  where  a  testator  has  imperatively  directed  land  to  be  sold 
and  turned  into  money,  ecjuity  will  consider  that  the  conversion 
fas  it  is  termed)  has  taken  place  from  the  instant  of  the  testr.- 
tor's  death,  and  the  sul\se([uent  devolution  of  the  property  w.Il 
be  governed  by  the  rules  which  control,  not  real,  but  person;,! 
estate.  And  so,  as  it  is  the  dut}-  of  a  trustee  to  deal  with  the 
trust  property  for  the  benefit  of  the  cestui  que  trust,  a  profit 
made  in  his  own  name  will  be  regardetl  as  made  for  the  benefit 
of  the  trust  estate.  This  maxim  will  be  found  running  through 
the  whole  system  of  equity  jurisprudence.- 

45.  IX.  Between  equal  Equities  priority  of  time  will  pre- 
vail.-' 

This  is  the  rule  which  is  applied  to  determine  the  order  be- 
tween conflicting  equities.  If  nothing  else  intervenes  to  turn 
the  scale,  the  man  who  is  first  in  time  will  be  first  in  right.  The 
maxim  is  frequenth'  a))])lied  in  questions  which  arise  under  titles 
acriuired  through  equitable  assignments,  and  the  nature  of  this 
doctrine  and  the  reason  of  its  application  have  thus  been  stated 
by  very  high  authority:  ''Now  I  take  it,"  said  Lord  Westbury, 
in  Phillips  r.  Phillips,''  "to  be  a  clear  proposition  that  every 
conveyance  of  an  e(iuital)le  interest  is  an  innocent  conveyance; 
that  is  to  say,  the  grant  of  a  person  entitled  in  equit}^  passes 
only  that  which  he  is  justly  entitled  to  and  no  more.  If.  there- 
fore, a  person  seized  of  an  ecjuitable  estate,  the  legal  (>state  being 
outstanding,  makes  an  assiu'ance  by  way  of  mortgage  or  grants 
an  annuity,  and  afterwards  conveys  the  whole  estate  to  a  i)ur- 
chaser,  he  can  only  grant  to  a  purchaser  that  which  he  has, 
viz.,  the  estate  subject  to  the  annuity  or  mortgage,  and  no  more. 
The  subsequent  grantee  takes  only  what  is  left  in  the  grantor. 
Hence  grantees  and  encumbrancers  claiming  in  eijuity  take  and 

[1894]  ?>  Ch.  181;  Bridgeport  Elec.  &  78  Maryland,  270-28.3;  Belts  v.  Con- 
Ice  C;o.  V.  Meader,  'M)  U.  S.  App.  ,588;  necticut  Life  Ins.  C'o.,  7G  Conn.  877. 
Bushc.Boutelle,  156  Mass.  167;  Ship-  i  Fitts  r.  Grocery  Co.,  144  N.  C. 
man  v.  Lord,  58  N.  J.  Eq.  380;  Payne  471. 

V.  Lumber  Co.,  9  Okla.  683;  Rea  v.  ^  Bennett  r.  Harper,  .36  W.  Va.  546. 

Wilson,   112  Iowa,  517;  Nat.  Bk.  of  »  Maguire  r.  Heraty,  163  Pa.  381. 

Deposit   V.   Rogers,    166   N.   Y.   380;  *  DeO.  F.  &  J.  218.     See  the  Eng- 

Warner  v.  City  of  New  Orleans,   '■)]  lish   and   Scottish   Mercantile  Co.   v. 

C.  C.  A.  243;  and  McRea  v.  McR.a.  Brunton,  [1892]  2  Q.  B.  1-7 


70 


MAXIMS    IN    EQUITY, 


[CH.  III. 


ars  ranked  according  to  lh(>  dati^s  of  their  securities,  and  the 
maxim  apphes,  (}ui  prior  est  tern-pore,  potior  est  jure.  The  first 
grantor  is  potior,  that  is,  potentior.  He  has  a  better  and  supe- 
rior, because  a  prior,  equity."  ^  But  in  order  that  this  maxim 
should  ap})ly,  the  equities  must  be  equal.  Should  they,  for  any 
n^ason,  b(!  wn(;qual— should  tlie  l)alance  be  disturbed  by  fraud, 
laches,  or  negligence^  the  prior  ec^uity  may  be  postponed." 

46.  X.  Equity  iinpiitos  an  intention  to  fulfil  an  obligation.^ 

What  is  meant  by  this  maxim  is  that  when  a  person  covenants 
to  do  an  act,  and  he  does  that  which  may  either  wholly  or 
partially  be  converted  to  or  towards  a  completion  of  the  cov- 
enant, he  >hall  lie  presumed  to  have  done  it  with  that  inten- 
tion. Ill  the  case  of  Wilcocks  i\  Wilcocks,^  which  is  a  leading 
authority  ujjon  this  jioint,  a  person  covenanted  to  purchase  and 
to  settle  lands  of  a  certain  vahie,  and  afterwards  jjurchased 
lands  of  eciual  or  greater  value,  which  descended  upon  his  heir, 
and  it  was  deemed  a  performance  of  the  covenant.  Upon  the 
same  principle  a  purchase  in  the  name  of  a  child  will  be  con- 
sidered as  an  advancement,  and  not  as  a  resulting  trust  for  the 
benefit  of  the  father  (the  purchaser) ;  ^  and  a  legacy  to  a  child 
will  be  treated  as  a  provision. 

47.  XT.  E(|uity  acts  in  personam. 

It  was  against  the  person  that  the  jurisdiction  of  the  Court  of 
Chancery  was  originally  acquired,^  and  an  attachment  against 
the  person  has  always  been,  and  still  is,  one  of  the  onhnary 
means  of  enforcing  obedience  to  its  decrees.  Indeed,  it  may  be 
said  that,  ''generally,  if  not  universally,  equity  jurisdiction  is 


1  See  Union  Bank  of  London  v. 
Kent,  39  Ch.  D.  23S,  for  a  statement 
of  the  general  principle,  and  the 
exceptions  to  it. 

2  See  Heyder  v.  Excelsior  Building 
Loan  Association,  42  N.  J.  Eq.  403, 
and  the  remarks  of  the  court  on  pp. 
407  and  408.  See  also  Farrand  v. 
Yorkshire  Banking  Co.,  40  Ch.  D. 
189.  Where  a  person  advances  pur- 
chase money  and  takes  a  mortgage 
from  the  purchaser  at  the  time  of  the 
conveyance  from  the  seller,  the  trans- 
action of  purchase  and  of  mortgage 


will  be  considered  one;  and  the  equity 
of  the  person  making  the  advance 
will  be  deemed  superior  to  that  of  a 
prior  lien  creditor  of  the  purchaser. 
Demeter  v.  Wilcox,  115  Mo.  634. 

3  Warren  v.  Adams,  19  Col.  525; 
Jager  v.  Vollinger,  174  Mass.  521; 
Swearinger  v.  Ins.  Co.,  56  S.  C. 
355. 

4  2  Vern.  558;  2  Lead.  Cas.  Eq.  415. 

5  Post,  Part  I.,  chap,  on  Implied 
Trusts. 

6  Great  Falls  Manuf .  Co.  v.  Worster, 
23  N.  H.  462. 


CH.  III.] 


MAXIMS    IN    EQUITY 


71 


exercised  in  personam  and  not  in  rem,  and  depends  upon  the 
control  of  the  court  over  the  parties  by  reason  of  their  presence 
or  residence,  and  not  upon  the  place  where  the  land  lies  in  re- 
gard to  which  rehcf  is  sought."  ^  Hence,  when  the  parties  are 
within  the  jurisdiction  of  a  court  of  chancery,  it  will  not,  ordi- 
narily, hesitate  to  grant  relief,  although  the  property  to  be  ulti- 
mately affected  by  the  decree  may  lie  in  another  forum.  Thus 
the  Court  of  Chancery  in  England  decreed  specific  performance 
of  a  contract  respecting  the  boundaries  of  Pennsylvania  and 
Maryland,  when  colonies,  entered  into  by  the  proprietaries;-  a 
trustee  residing  in  one  state  may  be  compelled  to  make  a  con- 
veyance of  real  estate  situated  in  another-/  and  an  account  may 
be  taken  between  a  mortgagor  and  mortgagee  in  a  Court  of 
Equity  although  the  mortgaged  premises  lie  outside  its  territo- 
rial jurisdiction.'* 


1  Per  Gray,  J.,  in  Hart  v.  Sansom, 
110  U.  S.  154. 

2  Penn  v.  Lord  Baltimore,  1  Ves. 
444;  2  Lead.  Cas.  Eq.  767. 

3  Vaughan  v.  Barclay,  6  Whart. 
392.  To  the  same  effect  are  Earl 
of  Kildare  v.  Eustace,  1  Vern.  419; 
Lord  Cranstown  v.  Johnston,  3  Ves. 
170.  See  also  Mitchell  v.  Bunch,  2 
Paige  Ch.  R.  606;  and  Moore  v. 
Jaeger,  2  MacArthur,  465;  Lindley  i\ 
O'Reilly,  50  N.  J.  L.  636;  King  v.  Pil- 
low, 90  Tenn.  287;  Massie  v.  Watts,  6 
Cranch,  148;  Gilliland  v.  Inabnit,  92 
la.  46;  Clad  v.  Paist,  181  Pa.  148; 
Schmaltz  v.  York  Manuf.  Co.,  204  Id. 
1;  Noble  v.  Grandin,  125  Mich.  383; 
Vaught  V.  Meador,  99  Va.  569;  State 
ex  rel.  v.  Zachritz,  166  Mo.  307;  But- 
terfield  v.  Nogales  Co.,  9  Ariz.  212; 
Byrne  v.  Jones,  159  Fed.  Rep. 
.321. 

4  Peninsular,  etc.,  Co.  v.  Pacific 
S.  W.  Co.,  123  Cal.  689. 

A  corporation  was  organized  under 
the  laws  of  New  Jersey  for  the  pur- 
pose of  exporting  oil  for  sale  in  for- 
eign countries.  Its  manager,  who  was 
a  dealer  in  Hamburg,  Germany,  was 
given  a  power  of  attorney  conferring 
on  him  full  authority  to  act  for  the 


company  in  all  matters  and  which  in 
effect  vested  in  him  all  of  its  powers 
in  respect  to  its  business.  He  con- 
tinued the  business  in  Hamburg,  in 
the  name  of  the  company,  which 
purchased  oils  from  a  refinery  in  this 
country  and  had  the  same  shipped 
in  its  name  to  Hamburg  to  itself  as 
consignee,  from  which  point  they 
were  distributed.  By  its  directions 
barrels  were  shipped  unmarked,  ex- 
cept for  an  identifying  mark,  and  on 
their  receipt  at  Hamburg,  and  be- 
fore their  sale  to  consumers,  they 
were  marked  with  names  and  brands 
previously  exclusively  used  by  com- 
plainant to  designate  its  different 
kinds  of  oil,  which  it  also  sold  largely 
in  Europe.  Such  comj^any  also  made 
false  representations  that  its  oils 
were  the  same  as  complainant's  and 
made  by  the  same  process.  Held, 
in  a  suit  against  the  company,  its 
manager,  and  certain  of  its  officers, 
that  such  acts  of  fraud  and  unfair 
competition  were  not  committed 
solely  in  a  foreign  country,  but  had 
their  inception  and  were  in  part  per- 
formed in  this  country,  whence  the 
barrels  were  purposely  sent  with- 
out marks,  and  that  a  court  of  the 


72 


MAXIMS   IN    EQUITY. 


[CH.  III. 


It  follows  from  this,  however,  that  a  decree  in  equity  cannot, 
of  itself,  divest  a  title  at  law,  but  can  only  compel  the  holder  to 
convey.^  Therefore  it  was  held,  in  a  recent  case  in  Mrginia, 
that  a  court  in  New  York  had  no  power  to  make  title  to  land 
in  the  former  state  by  a  decree  authorizing  the  committee  of  a 
lunatic  to  convey;  for  as  the  owner  was  incapable  of  executing 
a  deed,  his  title  could  be  divested  only  by  some  process  from  a 
court  of  the  sovereign  (the  State)  within  whose  territory  the 
land  was  situate  .- 

The  question  is  one  of  great  practical  importance  in  fore- 
closure suits  against  railroad  corporations  whose  lines  of  rail- 
way extend  over  more  than  one  state.  It  is  now  settled  by 
the  highest  authority  that  a  decree  of  foreclosure  and  a  sale  of 
the  entire  mortgaged  pro))erty  is  valid,  although  a  jjortion  of 
that  property  may  lie  out  of  the  territorial  jurisdiction  of  the 
court  making  the  decree;  provided,  of  course,  that  the  juris- 
diction over  the  defc^ndants  in  personam  had  properly  attached. 
Such  was  the  ruling  of  th(-  Supreme  Court  of  the  United  States 
in  Muller  v.  Dows,^  where  I\Ir.  Justice  Strong  said:  ''^^'ithout 
reference  to  the  English  chancery  decisions,  where  this  oljjcc- 
tion  to  the  decree  would  be  quite  untenable,  we  think  the 
power  of  courts  of  chancery  in  this  country  is  sufficient  to  au- 
thorize such  a  decree  as  was  here  made.  It  is  here  undoubt- 
edly a  recognized  doctrine  that  a  court  of  e(|uity,  sitting  in  a 
state,  and  having  jurisdiction  of  the  person,  ma}'  decree  a  con- 
veyance by  him  of  land  in  another  state,  and  may  enforce  the 
decree  by  process  against  the  defendant.  True,  it  cannot  send 
its  process  into  that  other  state,  nor  can  it  deliver  possession 
of  land  in  another  jurisdiction;  but  it  can  command  and  en- 
force a  transfer  of  the  title.    And  there  seems  to  be  no  reason 


United  States  liad  nirisdiction  to 
gnuit  relief  against  the  same. 

The  fact  that  the  subject-matter  of 
a  suit  is  situated  in  a  foreign  country 
will  not  deprive  a  coiu-t  of  equity  of 
the  United  States  of  jurisdiction  to 
grant  relief  against  fraud  with  refer- 
ence to  such  subject-matter  by  de- 
fendants, who  are  within  the  court's 
jurisdiction.  Vacuum  Oil  Co.  >•. 
Eagle  Oil  Co.,  154  Fed.  Rep.  867. 

The  juri.sdiction  of  the  person  of  a 
party  gives  a  court  of  equity  plenary 


power  in  cases  of  contract,  fraud,  or 
trust  to  compel  him  to  act  in  relation 
to  property  in  his  control  beyond 
its  territorial  jurisdiction.  Wilhite  v. 
Skelton,  1-19  Fed.  Rep.  67. 

1  Proctor  V.  Ferebee,  I  Ired.  Eq. 
14.];  Miller  v.  Sherry,  2  Wall.  241-2; 
and  see  same  ca.se,  pp.  248-9. 

2  Hotchkiss  V.  Middlekauf,  90  Va. 
649.  See,  also,  Lindsley  v.  Union 
Mining  Co.,  26  Wash.  301. 

^94  U.  S.  444;  Riverdale  Mills  v. 
Alabama  Co.,  198  U.  S.  197. 


CH.  III.]  MAXIMS   IN   EQUITY.  73 

why  it  cannot,  in  a  proper  case,  effect  the  transfer  by  the 
agency  of  trustees  when  they  are  complainants."  And  so  in 
McElrath  v.  The  Pittsburg  and  Steubenville  Railroad  Co./  a 
bill  for  foreclosure  of  a  mortgage — in  which  it  appeared  that  a 
railroad  company,  whose  road  was  partly  in  Pennsylvania  and 
partly  in  West  Virginia,  had  mortgaged  all  their  rights  in  the 
whole  road — the  court  decreed  that  the  trustee  who  had 
brought  the  suit,  being  within  its  jurisdiction,  should  sell  and 
convey  all  the  mortgaged  property,  as  well  that  in  the  state 
of  A\'est  Virginia  as  that  in  Pennsylvania.  But  where,  in  order 
to  the  relief  sought,  it  is  necessary  to  deal  directly  with  the 
land  itself,  the  foreign  situation  of  the  property  will  be  a  bar 
to  the  jurisdiction.  Thus,  a  bill  cannot  be  brought  for  a  parti- 
tion of  land  outside  of  the  jurisdiction,  for  the  court  cannot 
issue  a  commission  thither;  -  nor  to  remove  a  nuisance  similarly 
situated,  for  no  writ  to  abate  the  nuisance  would  run,'"*  nor  can 
title  be  made  by  a  master  or  commissioner  where  the  real  estate 
is  beyond  the  territorial  jurisdiction  of  the  court  by  whom  such 
officers  are  appointed.^ 

The  doctrine  that  equity  acts  in  personam  has  also  been  ap- 
plied for  the  purpose  of  restraining  a  defendant  within  the  ju- 
risdiction from  prosecuting  suits  unthout  the  jurisdiction.  The 
question  whether  an  injunction  should  issue  under  such  circum- 
stances came  before  Lord  Hardwicke  in  Mcintosh  v.  Ogilvie,*'^ 
and  was  decided  in  the  affirmative.  Similar  rulings  have  been 
made  l)y  many  state  courts  in  this  country;**  and  these  deci- 
sions have  all  been  approved  l)y  the  Federal  Supreme  Court.' 

The  maxim  that  a  court  of  etjuity  acts  in  personam  must  not 

1  55  Pa.  189.  See,  also,  White  v.  *  Watts  v.  Waddle,  6  Pet.  389; 
Hall,  12  Ves.  Jr.  .321;  MacGregor  v.  Guarantee  Trust  Co.  v.  Delta  &  Pine 
MacGregor,  9  la.  65;  and  Memphis       Land  Co.,  43  C.  C.  A.  403. 

Sav.  Bk.  V.  Houchens,  52  C.  C.  A.  176,  5  4  T.  R.  193  n. 

188.  6  Snook  v.  Snetzer,  25  Ohio,  516; 

2  Smith's  Manual  of  Equity,  30.  Keyser  v.  Rice,  47  Md.  203;  Dehon 
See,  also,  Glen  I).  Gibson,  9  Barb.  634;  v.  Foster,  4  Allen,  545;  Sercomb  v. 
MacGregor  v.  MacGregor,  9  la.  65;  Catlin,  128  111.  556;  Dinsmore  v. 
Guarantee  Trust  Co.  v.  Delta  &  Pine  Neresheimer,  32  Hun,  204;  Zimmer- 
Land  Co.,  43  C.  C.  A.  403;  and  Port  man  v.  Franke,  34  Kan.  650;  Wilson 
Royal  R.  R.  Co.  I'.  Hammond,  58  Ga.  v.  Joseph,  107  Ind.  490;  Biggs  r. 
523.  Colby,  4  Ind.  Ter.  383;  Royal  League 

3  Morris  v.  Remington,  1  Pars.  Eq.  v.  Kavanagh,  233  111.  175. 

C.  (Pa.)  387.     See,  also,  Thomas  v.  ?  Cole  v.  Cunningham,   133  U.  S. 

Hukill,  131  Pa.  298.  107. 


74  MAXIMS   IN    EQUITY.  [CH.  III. 

he  uiidei-stood  to  mean  that  the  jurisdiction  of  the  chancellor 
extends  to  rights  of  action  for  permnal  injuries.  The  reverse  is 
the  case.  The  subject  of  the  jurisdiction  of  courts  of  equity  is 
property — not  persons.  Their  process  is  directed  against  persons, 
and  sometimes  against  property;  but  there  must  be  some  right 
of  property  involv(»d  in  order  that  the  jurisdiction  of  the  court 
may  attach.  This  subject  will  be  noticed  hereafter;  ^  but  refer- 
ence may  be  made,  in  this  connection,  to  the  refusal  of  courts  of 
chancery  to  entertain  any  bill  to  recover  damages  for  purely 
personal  torts,"  or  to  prevent  violations  of  purely  political  rights.^ 
It  may  not  be  out  of  place,  moreover,  to  mention  here  the 
rule  applicable  when  the  res  happens  to  be  within  the  jurisdic- 
tion, and  the  person  whose  rights  in  the  res  are  sought  to  be 
affected  by  the  decree  is  a  non-resident.  In  such  cases,  at  all 
events  for  certain  purposes,  the  court  will  exercise  jurisdiction 
over  the  thing,  although  personal  service  upon  the  defendant 
may  not  be  j)ossible — whenever  service  by  publication,  in  lieu 
of  a  personal  service,  is  authorized  by  statute.  Cases  not  infre- 
quently arise  where  it  is  necessary  that  the  title  to  real  estate 
should  be  perfected  by  getting  rid  of  an  outstanding  claim. 
The  title  to  land  may  be  clouded  by  the  existence  of  an  alleged 
right  which  the  holder  declines,  presently,  to  assert.  There 
is,  as  we  shall  see  hereafter,  a  jurisdiction  in  courts  of  chancery 
to  remove  a  "cloud"  upon  the  title.  This  power  may  be  exer- 
cised if  the  land  is  within  the  process  of  the  court,  although 
the  party  affected  may  be  beyond  its  limits.'' 

48.  XII.  Equity  acts  specitically. 

^rhe  last  maxim  which  will  l)e  noticed  is,  that  equity  acts 
specifically,  and  not  by  way  of  compensation;  which  embodies 
a  general  principle  running  through  the  whole  system  of 
chancery  jurisprudence.  This  principle  is  that  equity  aims 
at  putting  parties  exactly  in  the  position  which  the}'  ought 
to  occupy;'"'  giving  them  ///  specie  what  they  are  entitled  to 
enjoy;  and  putting  a  stop,  actually,  to  injuries  which  are  being 
inflicted.    Thus,  equity  decrees  the  performance  of  a  contract, 

1  See  end  of  Chapter   II.   of   Part  »  Fletcher  v.  Tuttle,  151  III.  41. 
III.,  Injunctions,  §  465.  ■' Aindt  r.  Griggs,  134  U.  S.  320. 

2  See  Brawn  v.  Wabash  Ry.  Co.,  &"  It  looks  through  form  to  sub- 
96  111.  297,  where  a  bill  filed  against  stance."  Texas  v.  Hardenberg,  K 
receivers,     for     injury     resulting     in  Wall.  89. 

death,  was  dismissed. 


CH.  III.]  MAXIMS   IN    EQUITY.  75 

and  does  not  give  damages  for  its  breach.^  So,  also,  equity 
will,  under  certain  eircunistances,  restrain  the  commission  of 
destructive  trespass;'  whereas,  at  common  law,  all  that  the 
aggrieved  party  could  obtain  would  be  a  money  compensation 
for  the  injury.  And  so,  again,  a  chancellor  will  sometimes 
compel  a  party  specifically  to  make  good  his  representations 
by  which  another  has  been  misled;  while  in  the  connnon-law 
action  of  deceit,  damages  alone  can  be  recovered. 

In  some  exceptional  cases,  indeed,  equity  will  afford  compen- 
sation in  lieu  of  specific  relief;  iTut  such  cases  are  rare.  These 
exceptions,  as  well  as  the  general  principles  contained  in  this 
maxim,  will  be  illustrated  more  at  length  under  the  appropriate 
heads  of  Specific  Performance  and  Injunction. 

1  Post,  Part  III.,  chap,  on  Specific  2  Post,  Part  III.,  chap,  on  Injunc- 

Performance.  tions. 


PART   I. 

EQUITABLE  TITLES. 


CHAPTER  I. 


TRUSTS  ;    THEIR  ORIGIN,  HISTORY,  AND  GENERAL  NATURE. 


49.  Definition  of  Trusts. 

50.  Distinction  between  Trusts  and 

Fidei  Commissa. 

51.  Origin  of  Trusts. 

52.  Trusts    before    the    Statute    of 

Uses;  Statute  1  Rich.  IIL  c  1. 

53.  Statute  of  Uses;  27  Hen.  VIII. 

c.  10. 

54.  General  nature  of  Trusts;  Active 

and  Passive  Trusts. 

55.  When  Trusts  will  be  e.xecuted  by 

the  Statute;  Rules  in  several 
States. 


56.  Lawful  and  Unlawful  Trusts. 

57.  Executed  and  Executory  Trusts; 

Glenorchy    v.     Bosrille;    Sack- 
vilte-West   v.    Holmesilule. 

58.  Reformation  of  executory  instru- 

ments creating  Trusts. 

59.  Pubhc  and  Private  Trusts. 

60.  General  rules  for  the  devolution 

of  Equitable  Estates. 

61.  Alienation  of  Equitable  E.states; 

Liability  for  debts. 

62.  Exceptions  to  the  general  rules  of 

devolution   of   Equitable    Es- 
tates. 


49.  Definitiou. 

A  TRUST,  in  its  technical  sense,  is  the  right,  enforceable  solelv 
in  equity,  to  the  beneficial  enjoyment  of  pi'opertv  of  wliich 
the  legal  title  is  in  another.^  The  radical  idea  of  a  trust  is  this 
separate  co-existence  of  the  legal  title  with  the  beneficial  owner- 
ship, or,  as  it  came  to  be  called,  the  equitable  title.  The  perfect 
ownership  is,  as  it  were,  decomposed  into  its  constituent  ele- 
ments of  legal  title  and  beneficial  interest,  which  are  vested  in 
different  persons  at  the  same  time.^  Thus,  to  take  the  simplest 
case,  if  land  is  conveyed  or  devised  to  A  on  such  terms  that  he 
is  compellable  to  hold  it  for  the  benefit  of  B,  here  A  has  the  legal 
title,  B  has  the  beneficial  ownership,  or  right  to  enjoy  the  land; 


1  See  Kane  v.  Bloodgood,  7  J.  C.  R. 
90;  Warner  v.  McMullin,  131  Pa.  381. 
In  McKee  v.  Lamon,  159  U.  S.  322, 
the  distinction  between  a  trust  and  a 
bailment  does  not  seem  to  be  clearly 
recognized. 

76 


2  See  the  argument  in  McDonogh's 
Ex'rs  V.  Murdock,  15  How.  391.  See 
also  Chaffees  v.  Risk,  24  Pa.  432; 
Wallace  v.  Wainwright,  87  Id.  267. 


CH.  I.]  trusts;  their  general  nature.  77 

and  this  right,  originally  enforceable  solely  in  equity  by  suing 
out  a  subpoena  against  A,  was  considered  as  attaining  the  dignity 
of  a  title. 

The  length  of  time  during  which  this  separation  of  the  owner- 
ship into  its  constituent  elements  continues,  and  the  extent  of 
B's  control  over  the  property,  in  other  words,  the  duration 
and  the  nature  of  the  trust  depend  upon  the  terms  by  which  it 
is  created,  subject,  of  course,  to  certain  established  legal  rules. 

The  system  of  trusts  is  now  so  thoroughly  recognized  that, 
according  to  the  laws  of  property  in  England  and  in  other 
countries  where  the  EngHsh  common  law  is  in  force,  it  is  one 
of  the  rights  of  ownership  that  this  division  of  the  complete 
title  should,  if  desired,  take  place.  If  the  absolute  owner  of 
property  wishes  for  any  reason  to  have  the  equitable  title  only 
vested  in  him  and  the  legal  title  outstanding  in  another,  he  has 
a  perfect  right  to  hold  and  enjoy  his  property  in  that  way. 
Nor  is  it  necessary  that  the  cestui  que  trust  should  be  under  any 
disability  in  order  that  he  may  enjoy  this  privilege.  A  person 
sui  juris,  and  who  is  the  absolute  owner  of  property,  may  avail 
himself  of  the  system  of  trusts,  and  may  keep  the  legal  title 
outstanding  in  another  as  long  as  he  sees  fit  so  to  do.^ 

50.  Distinction  between  Trusts  and  Fldei  Commissa. 

It  has  been  supposed  that  the  English  trust  was  identical 
with,  or,  at  all  events,  bore  a  very  great  resemblance  to  the 
Y\.om'AX\  fidei  cormnisswu  ;  but  that  there  is  a  broad  distinction 
between  the  two  has  been  pointed  out  by  high  authority.  In 
McDonogli's  Executors  v.  Murdoch  ^  the  question  arose  whether 
a  "trust''  was  within  the  language  of  the  Louisiana  code  pro- 
hibiting snhdUutlois  'cindjidei  roimnissa,  and  it  was  held  that  it 
was  not.  The  difference  between  the  two  was  clearly  explained 
in  the  opinion  of  the  court  in  that  case;^  and,  indeed,  is  obvious 
from  a  consideration  of  the  nature  of  the  Jldei  commissa  as  they 
existed  under  the  Roman  law. 

1  See  the  language  of  Lord  Chan-  A  deed  or  will  does  not  create  a 

cellor    Cairns    in    Shropshire    Union  trust  unless  there  is  a  separation  of 

Railways    and    Canal    Co.    v.    The  the  legal  estate  from   the  beneficial 

Quoen.  L.  R.  7  Eng.  and  Tr.  App.  507;  enjoyment  and  a  trust  cannot  exist 

of  Chitty,  J.,  in  Carritt  v.  Real  and  when  the  same  person  possesses  both. 

Personal  Advance  Co.,  42  Ch.  D.  270,  Doan  v.  Vestry,  103  Md.  662. 

and    of    Farwell,    J.,    in    Rimmer    v.  2  15  Howard,  367. 

Webster,  [1902]  2  Ch.  170.    See  also  3  id.  407-409. 
Young  V.  Snow,  167  Mass.  287. 


78  TRUSTS ;  THEIR   GENERAL   NATURE.  [PART   I. 

The  Jidei  covimissuin  was  the  means  of  carrying  out  substiiu- 
•tions  which  could  not  be  otherwise  effected  by  the  testator. 
By  a  substitution  Si  party  could  be  appointed  to  take  the  inherit- 
ance, in  case  the  person  who  was  designated  as  heir  in  the 
first  instance  did  not  make  his  election  to  accept  the  inherit- 
ance within  a  specified  time,  or  in  case  he  was  a  descendant 
of  the  testator,  and  after  becoming  heir  died  under  puberty.' 
Thus,  the  testator  could  say,  "  Lucius  Titius,  be  heir  and  make 
thv  cretion'^  within  the  next  hundred  davs  after  thou  hast 
knowledge  and  ability.  But  if  thou  dost  not  so  make  cretion 
be  disinherited,  and  then  Moevius  be  heir."  ^  And  also, 
"Titius,  ray  son,  be  my  heir.  If  my  son  shall  not  become 
my  heir,  or  if  he  become  my  heir  and  die  before  he  comes  into 
his  new  governance,  Seius  be  heir."^  If,  however,  a  stranger, 
and  not  a  descendant,  was  instituted  as  heir,  a  substitution 
could  not  be  made  in  such  a  way  that  if  the  heir  died  within  a 
specified  time  some  other  person  should  be  heir  to  him.  But 
this  end  was  effected  by  means  of  the jidei  co//wiissiwi,^  whei'eby 
the  heir  was  bound  to  deliver  over  the  inheritance  either  in 
whole  or  in  part,  at  or  after  a  designated  time.^  In  other 
words,  the  fidei  commissa  were  the  means  whereby  the  trans- 
mission  of  estates,  to  be  enjoyed  by  successive  owners,  was 
secured.'  The  performance  of  the  Jidei  commissa  was  enforced 
at  Rome  by  the  consul  or  the  praetor  whose  special  jurisdiction 
was  over  Jidei  conunissa,  and  in  the  provinces  b}"  the  governor.^ 
Subsequently  a  praetor  was  wppuinted  for  the  special  purpose  of 
hearing  such  causes,  receiving,  from  the  nature  of  his  duty, 
the  name  of  pra'to)' Jidd  connnis.sid'ius? 

It  is  true  that  in  both  the  Wowmiw  Jidei  eomQiiissa  and  English 
trusts,  a  confidential  I'olationship  was  ])resumed  to  exist,'"  but 
in  the  former  it  was  called  into  being  for  the  purpose  of  trans- 
mitting the  inheritance ;  in  the  latter,  in  order  to  regulate  the 
present  enjoyment  of  the  estate." 

'  Commentaries  of  Gains  (Abdy  &  '  Resemhlinji,  in  this  particular,  the 

Walker),    Book    II.    §§  174  to    180;      system  of  estates-tail  in  the  English- 

and  see  McDonogh's  Ex'rs  v.  Mur-      law. 

doch,  15  How.  407,  408.  '  Gains,  Book  II.  §  278. 

'^  Election,  choice.  *  Justinian,     Lib.    II.,    Tit.    xxiii. 

'  Com.  of  Gaius,  ut  sup.  §§  1  and  2. 

*Id.  §  179.  '"Amos  on  the  Science  of  Juris- 

*Id.  §  184.  prudence,  91. 

•  Id.  §§  184,  246  to  289.  "  A  trust  to  convey  land  or  to  trans- 


CH.  I.]  trusts;  their  general  nature.  79 

The  fundamental  idea,  moreover,  which  lay  at  the  root  of 
both  trusts  aindjideico/nmtssa  was  probably  the  same,  viz.,  that 
under  certain  circumstances  it  mig-ht  be  convenient  or  desirable 
that  one  man  should  take  and  hold  property,  the  benefit  of 
which  was  sooner  or  later  to  accrue  to  anotlier ;  but  the  de- 
velopment of  this  idea,  in  the  two  systems  of  jurisprudence 
was  essentially  different. 

The  distinction,  therefore,  which  it  is  desirable  to  remember 
as  existing  between  the  Jidei  commissv.in  and  the  trust  is  this, 
that  in  the  former  there  was  no  separation  of  the  legal  and 
equitable  title,  but  there  was  simply  a  request,  which  after- 
wards became  a  duty  imposed  upon  the  gravatus,  to  convey  the 
inheritance  to  another  person,  either  immediately  or  after  a 
certain  event,  ^\  y.,  the  death  of  the  first  taker;  whereas,  in 
the  trust,  the  perfect  ownership  is  decomposed  into  its  con- 
stituent elements  of  legal  title  and  beneficial  interest,  which 
are  vested  in  different  persons  at  the  same  time.' 

It  may  also  be  here  remarked  that  the  fidei  comjmssa  arose 
out  of  testamentary  dispositions  ;  whereas,  English  trusts  were 
originally  created  only  by  conveyances  inter  vivos,  land  not 
being  devisable  before  the  statute  of  Henry  YIII. 

It  may  further  be  observed  that  the  usus  and  usfifructus  of 
the  Roman  law  are  not  to  be  confounded  with  the  English 
use  or  trust.  The  usus  in  the  Roman  law  of  property  consisted 
in  the  light  to  the  natural  use  of  a  thing,  owned  by  another, 
by  some  definite  individual  and  the  family  circle  of  which  he 
constituted  the  head,  and  was  ordinarily  not  transferable.  The 
usufructus  was  of  greater  extent  than  the  usus,  there  being 
added  to  the  latter  the  fructus  or  a  right  to  enjoy  the  fruits 
of  land  to  a  greater  extent  than  is  necessary  for  daily  con- 
sumption ;  and  this  right  could  be  let,  sold,  or  given  to  an- 
other.'^ 


fer  or  deliver  personalty  would  bear  a  the  money,   with  notice  of  its  ulti- 

close  resemblance  to  a  ^dei  commis-  mate    destination,     is    sufficient    to 

sum.     "There  can  be  no  doubt  of  the  create  a  duty  on  the  part  of  the  bailee 

general  proposition  that  where  money  to  devote  it  to  the  purpose  intended 

is  placed  in  the  hands  of  one  persoix  by  the  bailor."     McKee  v.   Lamon, 

to  be  delivered  to  another,  a  trust  159  U.  S.  .322. 

arises  in  favor  of  the  latter  which  he  '  See  2  Pollock  &  Maitland's  Ilis- 

may  enforce  by  bill  in  equity,  if  not  tory  of  Ensilish  law,  pp.  226-236. 

by  action  at  law.     The  acceptance  of  ^  See  Justinian's  Institutes,  Lib.  II. 


80  trusts;  their  general  nature.  [part  i, 

51.  Origin  of  Trusts. 

When  it  was,  exactly,  that  the  idea  of  the  separation  of 
the  complete  ownership  into  the  legal  and  equitable  titles  first 
made  its  appearance  in  England,  is,  perhaps,  impossible  to  say  ; 
nor  can  it  be  asserted  with  an}-  certainty  whether  this  idea  was 
one  of  purely  English  growth,  or  whether  it  was  imported  from 
some  other  system  of  laws.  The  probabilities  are  in  favor  of 
its  indigenous  nature ;  for,  as  we  have  seen,  it  has  no  exact 
counterpa/t  in  the  Roman  law;^  nor  is  it  likely  that  the  English 
lawyers  of  verv  early  times  had  opportunities  of  studying  this 
law,  if  any  such  ideas  could  indeed  have  been  gathered  from  it.^ 

In  early  times,  the  idea  of  the  separation  of  the  legal  and 
equitable  titles  must  have  met  with  an  enemy  in  the  feudal 
system.  To  allow  a  feud  to  be  held  by  one  person  in  trust  for 
another,  would  have  created  confusion  in  determining  to  whom 
the  lord  was  to  look  for  the  performance  (jf  the  services  annexed 
to  the  feud,  and  for  those  pecuniary  and  other  advantages  whicli 
he  derived  from  the  death  of  the  feudatory,  or  the  alienation  of 
the  estate.  Hence,  Mr.  Butler  has  regarded  the  introduction 
of  uses  as  one  of  the  most  effective  blows  aimed  at  the  feudal 
system.^ 

Some  attempts,  indeed,  have  been  made  to  show  that  trusts 
existed  in  the  reign  of  King  Alfred;  but  the  better  opinion 
seems  to  be  that  the  instance  referred  to  was  the  description  of 
a  tenure,  and  not  the  case  of  a  trust.^  The  probabilities  are, 
that  trusts  were  recognized  before  the  statute  of  quia  emptor es 
(13  Edw.  I.),  and  became  frequent  after  that  date  ;  this  prob- 
ability being  founded  on  authority,^  and  being  further 
strengthened  by  the  fact  alluded  to  by  Mr.  Finlason,  that  we 
not  unfrequently  fall  into  error  when  we  assume  that  "because 
proceedings  are  not  mentioned  as  being  judicially  decided  upon 
they  did  not  exist." 

tit.  iv.  and  v.;    Tompkins  and  Jen-  En^lii^li  l^iw  was  probably  the  early 

kyn's  Modern  Roman  Law,  173,  174.  Rf)man    law — not    the    law  of    Jus- 

'  See  the  opinion  of  Judge  Camp-  tinian. 

bell    in    McDonojjh's    Executors    v.  ^  Co.  Litt.  191,  a,  note,  sec.  VI.  11. 

Murdoch,  1.5  How.  409.  *  Sanders,  U.  and  T.  7. 

'  The  tendency  in  modern  times  is.  *  See   reference   to    Bro.    Abr.    tit. 

perhaps,  to  exaggerate  the  extent  to  "Feoffmental     tJ.ses,"     in     Reeves's 

which   the  early   English   law   is  in-  Hist.   Eng.   L.,   vol.   2,   p.  575,   note 

debted    to    the    Roman    law.     The  (Finlason);  and   1   Spence  Eq.   439, 

Roman    law    which    influenced    the  note  /,  447. 


CH..I.]  trusts;  their  general  nature.  81 

Without,  however,  entering  into  any  elaborate  research,  it 
may  be  safely  assumed  that  in  the  reign  of  Edward  III.  the 
beneficial  enjoyment  of  land  as  distinguished  from  the  legal 
ownership  was  distinctly  recognized  ;  ^  and  it  now  becomes 
necessary  to  trace  briefly  the  nature  of  this  beneficial  interest, 
its  development  into  that  permanent  equitable  estate  known  as 
a  use,  the  nature  of  this  estate  prior  to  the  famous  statute  of 
uses  of  27  Henry  VIII. ,  the  effect  of  that  statute,  and  the 
character  of  the  equitable  interests  which  it  left  untouched, 
and  which  together  with  certain  other  like  interests,  under  the 
title  of  the  modern  trusts,  fell  peculiarly  under  the  jurisdiction 
of  the  Court  of  Chancery.^ 

52.  Trusts  before  the  Statute  of  Uses  ;  Statute  1  Rich.  III. 
c.  1. 

Befoi-e  the  statute  of  uses  there  appears  to  have  existed  a 
distinction  between  the  technical  "  use  "  and  a  "  trust."  "  AVhen 
a  trust,"  says  Bacon,^"  is  not  special  nor  transitory,  but  general 
and  permanent,  there  it  is  a  use."  The  permanent  "  use  "  was 
the  natural  result  and  outgrowth  of  the  "  special  trust."  Two 
classes  of  beneficial  interests  consequently  arose.^  First,  the  use 
or  simple  trust,  of  which  it  is  said  "  it  is  not  like  a  rent  out  of 
the  land,  but  is  like  a  collateral  thing  annexed  to  the  person 
touching  the  land  ;  and  it  is  but  a  confidence  for  the  usage  of 
land,  that  is  to  say,  a  confidence  that  the  feoffees  to  whom  the 
land  has  been  given  shall  permit  the  feoffor  and  his  heirs,  and 
those  whom  they  should  designate  to  receive  the  profits  of  the 
land,  and  that  the  feoffees  should  make  such  estates  of  the  land 
as  they  (the  feoffors)  should  limit,  and  so  their  estate  is  but  a 
confidence.  "  ^  Second,  the  special  trust :  which  was  subdivided 
into  the  "•  special  trust  lawful,"  as  if  a  man  had  enfeoffed  another 
to  the  intent  or  in  trust  to  be  re-enfeoffed,  or  to  the  intent  to  be 
vouched,  or  to  the  intent  to  suffer  a  recovery  ;  and  the  special 

'  In  the  Statute  50  Edw.  III.  c.  6,  '  gee  Perry  on  Trusts,   §  300. 

the  taking  the  profits  by  one  where  '  Essay  on  Uses,  9.     See  also  Hut- 

the   estate   at   law   is   in   another   is  chins  v.  Hej'wood,  50  N.  H.  497. 

recognized;  and  in  7  Rich.  II.  c.  12,  ^  See  Sanders,  Uses  and  Trusts,  6; 

the  word  use  (oeps  ad  opus,  2  Pollock  Lewin  on  Trusts  (10th  Eng.  ed.),  p.  5; 

and   Maitland's   Hi.story   of   English  1  Spence  Eq.  448. 

Law,  227)  is  first  inentioned.    Bacon,  ^  Delameres   Case,   Plowdeu,   346; 

23,  25;  1  Spence  Eq.  440.  Co.  Lit*.  272  b. 

6 


82  trusts;  their  general  nature.  [part  i. 

trust  unlawful,  or  covinous  trust,  as  a  trust  to  defraud  creditors, 
or  for  maintenance,  for  defeating  the  tenancy  to  the  praecipe, 
the  statutes  of  mortmain,  or  the  wardship  of  lords. 

The  courts  of  common  law  took  no  cognizance  of  these  equi- 
table interests,  and  the  only  remedy  which  the  beneticiary  en- 
joyed was  by  means  of  a  subpoena  out  of  chancery.^  Trusts  of 
both  descriptions  had  their  origin  either  in  fraud  or  fear.'^  In 
fraud,  for  they  were  designed  originally  by  ecclesiastics  for  the 
purpose  of  evadmg  the  statutes  of  mortmain,  and  were  suVjse- 
quently  made  use  of  in  order  to  effectuate  some  covinous  intent 
on  the  part  of  the  feoffee,  such  as  to  defraud  a  lord  of  his  ward- 
ship or  creditors  of  their  remedy  for  tlieir  debts ;  in  fear,  for 
the  effectiveness  of  this  method  of  defeating-  strictlv  le^al  rights 
was  soon  readily  taken  advantage  of  dui'ing  the  disputes  be- 
tween the  Houses  of  York  and  Lancaster,  which  began  with 
Bolingbroke's  usurpation  in  the  reign  of  Richard  II.,  in  order 
to  avoid  the  forfeitures  with  which  the  alternately  successful 
parties  visited  the  estates  of  their  adversaries.  Uses  and  special 
trusts,  therefore,  grew  into  a  system,  and  they  came  to  be 
governed  by  well-established  principles.  As  beneficial  interests 
rested  solely  upon  the  conscience  of  the  feoffee,  corporations 
were  held  not  to  be  capable  of  a  seisin  to  use,  for  they  liad  no 
soids?  The  king  or  queen  could  not  be  a  feoffee  to  uses,  for  it 
was  thought  inconsistent  with  the  royal  dignity  that  such  a 
confidence  should  be  enforced  against  a  sovereign  at  the  suit  of 
a  subject.  Hence,  when  the  Duke  of  Gloucester,  to  whom 
many  estates  had  been  conveyed  in  trust,  acquired  the  crown,  a 
special  statute  was  passed  in  order  to  remedy  the  mischief  which 

'  "  A  trust,"  said  Lord  Hardwicke,  McCartney  v.  Bostwick,  32  X.  Y.  53; 

'  is  where  there  is  such  a  confidence  Dorsey   v.   G&vey,   30   Md.   489.     In 

between  parties  that  no  action  at  law  Pennsylvania  the  cestui  que  trust  may 

will   lie;"    Sturt    v.  Mellish,  2    Atk.  enforce  the  right  to  the  possession  of 

612.     See,  also,  Allen  v.  Imlett,  Holt,  real  estate,  even  as  against  the  trus- 

641;  Vanderstegen  v.  Witham,  6  M.  tee,  by  an  action  of  ejectment.     Ken- 

&  W.  457;  Bond  v.  Nurse,  10  Q.  B.  nedy  r.  Fury,  1  Dall.  76. 

244;  Edwards  v.  Lowndes,   1   El.  &  ^  See  the  argument  of  Sir  Robert 

Bl.  81;  Millard's  Case,  2  Freem.  43.  Atkyns  in  Att.-Gen.  v.  Sands,  Hard. 

Nor  had  the  spiritual  courts  any  juris-  491.     "Tru.sts    and    uses,"    he    said, 

diction.     See  Witter  v.  Witter,  3  P.  "  luive  the  same  parents,  fraud  and 

Wms.  102;  King?'.  .Jenkins,  3  Dow.  &  fea- ;  and  the  same  nurse,  a  court  of 

R.  41;  Edwards  v.  Graves,  Hob.  265;  con.science." 

Farrington  v.  Knightly,  1  P.  Wm.-^.  ^  Sanders,  57-87;  Jenkins,   195. 
549.     See    further    on    the    subject 


CH.  T.]  trusts;  their  general  nature.  83 

would  other^Yise  have  arisen  from  the  incapacity  of  enforcing 
trusts  as  against  the  king.^ 

In  addition  to  confidence  of  jJ&rson^  j^H-yiVy  of  estate  was  also 
necessary.  No  person  could  be  seized  to  a  use  who  was  not  in 
oF  tlie  same  estate  as  that  of  which  the  use  had  been  declared. 
All  persons  who  came  in  by  title  paramount,  all  persons  who 
were  in  in  the  post  and  not  in  the  2-><^>\  took  the  estate  free  of 
tlie  use.  Such  was  the  lord  who  was  in  by  escheat,  or  a  tenant 
by  the  curtesy.     So  also  a  disseisor,  abator,  or  intruder."'^ 

A  consideration  was  necessary  to  raise  a  use  where  the  con- 
veyance was  one  which  did  not  operate  hy  transtnutatlon  of  pos- 
session ;  and  no  use  could  be  raised  either  of  personal  inheri- 
tances, such  as  annuities,  or  of  things  qure  i-pso  usu  consumtmtur^ 
such  as  commons  or  ways  in  gross. 

While  the  feoffee  to  uses  was,  in  the  eye  of  the  law,  the  real 
owner,  the  cestui  que  use  could  exercise  many  acts  of  owner- 
ship over  the  use  which  no  liohler  of  a  legal  title  could  enjoy 
over  land  itself.  lie  could  devise  it,  he  could  alien  it,^  and  it 
descended  according  to  the  rules  of  common  law  in  respect  to 
inheritances  of  land.  His  right  to  the  land,  however,  was  a 
mere  chose  in  actio/),  a  mere  right  to  sue  out  a  subpoena  in  chan- 
cery, and  it  was  liable  to  be  defeated  by  the  alienation  of  the 
holder  of  the  legal  title.  It  w^as  subject  to  the  feudal  duties  of 
the  feoffee  to  uses,  and  to  the  dower  of  his  Avife,  and  to  the 
danger  of  being  forfeited  ^ov  his  treason  or  felony  ;  and  it 
could  not,  originally,  be  enforced  against  his  heir.^ 

In  the  reign  of  Richard  HI.  a  very  important  statute^  was 
passed  affecting  the  rights  and  powers  of  the  cestui  que  nse. 
That  statute,  after  reciting  the  mischief  growing  out  of  un- 

*  Stat.     1    Rich.    III.    c.    5.     See  immunity   from   suit    are    collected. 

Hodge  V.  Att.-Gen.,3  Younge  &  Col.  See,  also,  Prioleau  v.  United   States, 

342.  L.  R.  2  Eq.  659;  and  New  v.  Bonaker, 

But  in  later  times  it  seems  to  have  L.  R.  4  Eq.  655. 

been  thought   that  there  could  be  a  ^  Sanders,  55,  61,  62;  1  Spence  Eq. 

"  royal  trustee,"  subject  to  the  prac-  445. 

tical   difficulty  of  enforcing    a  trust  ^  But  a  subpoena  was  not  assign- 
against    a    monarch.     See    Penu    v.  able  in  a  case  of  a  bare  trust  and  con- 
Lord  Baltimore,  1  Ves.  Sr.  453;  Earl  fidence.     See   Bacon,   Uses,    note  to 
of   Kildare   v.  Eustace,  1    Verii.  439,  p.    16,    Rowe's   edition.     See   Moyle 
note   1 ;  I'erry  on  Trusts,  §  40.     See  Finch's  Case,  4  Inst.  86. 
particularly  Briggs  r.  Light-boats,  11  *  Sanders,  67;  1  Spence  Eq.  445. 
Allen,    157,    where     the    authorities  '  1  Rich.  III.  c.  1. 
upon  the  subject  of  the  sovereign's 


84  trusts;  their  general  nature.  [part  i. 

known  and  privy  feoffments,  provided  in  substance  that  the 
cestui  que  use  should  have  the  power  of  alienating  not  only  the 
use  but  the  possession  also,  or,  in  other  words,  that  an  aliena- 
tion by  the  cestui  que  use  should  "  have  the  same  effect  as  if  he 
had  the  legal  ownership." 

It  has  been  argued  by  Mr.  Sanders  that  prior  to  the  statute  of 
Ilichard  III.  it  had  been  determined  that  on  a  feoffment  for  life 
or  in  tail,  or  a  grant  for  a  term  of  years,  there  could  be  no 
declaration  of  a  use,  and  that  a  subpoena  would  not  lie  against  a 
person  so  seised,  the  reason  being  "  that  as  to  the  state  or  seisin 
of  a  tenant  in  tail  no  use  could  be  limited  upon  it ;  first,  because 
the  tenure  of  itself  creiited  a  valuable  consideration;  and,  sec- 
ondly, because  the  statute  de  donis  had  appropriated  and  fixed 
the  estate  tail  to  the  donee  and  the  heirs  of  his  body,  so  that 
neither  he  nor  thev  could  execute  the  use ;  "  and  as  to  the  tenant 
for  life,  "  the  consideration  of  tenure  between  the  lessor  and 
lessee  appears  to  have  been  incompatible  with  the  use  ;"  *  while 
as  to  the  interest  of  a  termor,  '•  it  was  supposed  that  the  contract 
between  the  lessor  and  lessee,  and  the  consideration  upon  which 
the  latter  took  the  lease,  were  incompatible  with  and  repugnant 
to  the  nature  of  a  use  declared  to  any  other  person." 

The  point  is  not  of  any  great  practical  importance,  except  as 
illustrating  the  gradual  extension  of  equitable  interests  to  all 
degrees  of  estates,  for  the  statute  of  Henry  VIII.  included  uses 
declared  upon  the  seisin  of  a  tenant  for  life  (showing  their  ex- 
istence at  that  time) ;  and  courts  of  equity,  after  the  passage 
of  that  statute,  began  to  enforce  confidences  declared  upon  terms 
for  years,  not  as  the  old-fashioned  uses,  but  as  trusts.'"^ 

The  point  is  also  of  importance  as  showing  the  true  nature 
and  extent  of  a  trusty  for  the  definition  sometimes  given  of  a 
trust,  viz.,  that  it  is  a  use  not  executed  by  the  statute  of  Henry 
VIII. ,^  is  too  limited,  if  iise  is  employed  in  its  strict  technical 
sense. 

The  modern  trust  includes  not  only  those  technical  uses  which 
were  not  executed  by  the  statute,  but  also  equitable  interests 

>  Sanders,  U.  &  T.  28.     It  will  be  '  See  Sanders,  U.  &  T.  32. 

observed  that  this  arf^umeiit  has  no  '  1  Cruise  Real  Prop.  380;  Perry  on 

application  where  the  life  estate  was  Trusts,    §  300.     See,  also,  The  King 

not  created,  but  merely  transijerred  l)y  and  Holland,  Styl.  40. 
the    conveyance.     See    Lewin    (10th 
Eng.  ed.)  4;  1  Cruise  Real  Prop.  350. 


CH.  I.]  trusts;  their  general  nature,  Sfi 

which  never  were  considered  uses,'  and  did  not,  therefore,  fall 
within  the  provisions  of  tlie  statute.  These  equitable  inteiests. 
in  common  with  the  unexecuted  uses,  received  the  name  of 
trusts.^  It  may  be  remembered  here  that  the  term  "  trust "  did 
not  include  every  interest  in  land  recognized  in  the  Court  of 
Chancer3^  The  equity  of  redemption  of  a  mortgagor,  for  ex- 
ample was  an  equitable  interest  analogous  to  a  trust,  but  never- 
theless distinct  and  different  from  it.'^ 

To  return  to  the  statute  of  Richard  III, ;  a  difficulty  arose 
which  seems  not  to  have  been  foreseen,  viz.,  that  while  the 
power  of  alienation  was  conferred  upon  the  cestui  que  use,  no 
restraint  was  imposed  upon  the  like  power  Avhich  already  ex- 
isted in  the  feoffee  to  uses.  Hence,  if  a  conveyance  were  made 
by  the  latter,  his  alienee  might  and  did  interfere  with  the  en- 
joyment of  the  alienee  of  the  cestui  q  ue  use.  This  highly  unsatis- 
factory condition  of  titles  led,  among  other  things,  to  the  en- 
actment of  the  famous  Statute  of  Uses,  27  Henry  VIII.  c.  10. 

53.  Statute  of  Uses;  27  Hen.  VIII.  c.  10. 

The  provisions  of  this  statute  are  well  known.  It  enacted, 
in  substance,  that  wherever  any  person,^  by  any  assurance, 
stood  seized  to  the  use  of  another  for  any  estate  the  cestui  que 
use  should  be  deemed  to  be  in  lawful  seisin  and  possession  of 
the  same  estate  in  the  land  itself  as  he  had  in  the  use.  In  the 
language  of  conveyancing,  it  transferred  the  use  into  a  posses- 
sion, or  executed  the  use.  Its  objects,  according  to  the  pre- 
amble, were  "  for  the  extirping  and  extinguishment  of  all  such 
suljtle  ])racticed  feoffments,  tines,  recoveries,  abuses,  and  errors 
heretofore  used  and  accustomed  in  this  realm,  *  *  -^  and  to 
the  intent  that  the  king's  highness,  or  any  other  his  subject  of 
this  i-ealm,  shall  not  in  any  wise  hereafter,  by  any  means  or  in- 
ventions be  deceived,  damaged,  or  hurt  by  reason  of  such  trusts, 
uses,  and  confidences;"  and  in  addition  to  conferring  upon  the 
cestui  que  use  the  legal  title  to  and  the  possession  of  the  land,  it 

'  Sanders,  U.  &  T.  32.  Thurstan,  17  Ves.  133.     "Trusts  were 

'"In  modern  times  trust  estates  not  on  a  true  foundation  until  Lord 

are  extremely  analogous  to  uses  be-  Nottingham    held    the    great    seal." 

fore  the  statute  of  uses.     /  do  not  ,sa?/  Burgess    i\    Wheate,    1    Eden,    223; 

they  are  aiwnijfi  exactly  the  same."    See  Philips  i'.  Brydges,  3  Ves.  127;  Kemp 

Lord  Cran worth  in  Penny  v.  Allen,  7  v.  Kemp,  5  Ves.  8.58;  Perry,  §  8. 

DeG.  M.  &  G.  422.  *  A  firm  is  not  a  person;  Silverman 

"Sanders,  U.  &  T.  279;  Tucker  v.  v.  Kristufek,  1G2  111.  230. 


86  trusts;  their  general  mature.  [part  i. 

gave  him  the  power  to  protect  his  possession  by  action  or  entry 
against  any  person  "  for  any  waste,  disseisin,  trespass,  condition 
broiien,  or  any  other  offence  "  touching  the  same. 

Besides  this  statute,  Parliament  in  the  same  year  passed  an- 
other act  for  the  purpose  of  putting  a  stop  to  secret  convey- 
ances. This  was  the  statute  for  "  enrolment  of  bargains  and 
sales,"  ^  which  provided  for  the  registi'ation  of  all  bargains  and 
sales  of  land,  whereby  any  estate  of  inheritance  or  freehold 
should  be  made  to  take  effect  in  any  person,  or  any  use  of  the 
same  should  be  made. 

The  objects,  however,  which  these  statutes  professed  to  have 
in  view  were  soon  defeated. 

The  statute  in  regard  to  bargains  and  sales  provided  only  for 
the  enrolment  of  such  deetls  as  attempted  to  pass  freehold  es- 
tates, and  did  not  apply  to  terms  for  years.  Hence  arose  the 
well-known  system  of  conveyance  by  lease  and  release,  whereby 
a  lease  for  a  year  was  made,  by  bargain  and  sale,  and  the  lessee 
being  then  in  possession  by  virtue  of  the  statute  of  uses,  became 
capable  of  receiving  a  release  of  the  fee.'- 

The  construction  placed  u})on  the  statute  of  uses,  also,  lim- 
ited its  operation  to  a  great  degree. 

It  was  considered  that  copyholds  did  not  fall  within  the  pur- 
view of  the  statute,  because  it  was  against  the  nature  of  copy- 
hold tenure  that  any  one  should  be  introduced  into  the  estate 
without  the  consent  of  the  lord.^  It  was  decided  that  a  use 
limited  upon  a  use  was  not  executed  by  the  statute;*  or,  in 

'  27  Henry  VIII.  c.  16.  and  the  chancery  rule  was  the  same 

^  See  Hurst's  Lessee  v.  McNeil,   1  as  that  afterwards  laid  down  at  law 

Wash.  C.  C.  74.  in  the  case  in  Little  Brooke.     After 

^  Gilbert's  Tenures,   170;  Co.  Litt.  the  statute  the  common-law  courts 

272,  a;  Butler's  Notes,  §  viii.  2.  adopted  the  chancer}' rule,  and  equity 

*  Home  no  poet  vender  terre  al  J.  then  went  one  step  farther.  The 
S.  al  use  le  vendor,  ne  lesser  terre  al  doctrine  at  law  was  not  so  much  that 
iuy  rendrant  rent,  hahend  al  use  del  a  use  upon  a  use  was  not  executed,  as 
lessor,  car  ces  est  contrarie  al  ley  et  that  a  use  could  not  be  limited  upon 
reason,  car  il  ad  recompence  pvr  ceo.  a  use,  for  the  first  use  was  supposed 
36  Hen.  VIII.,  B.  N.  C.  284.  This  to  have  exhausted  the  consideration, 
was  the  decision  ot  the  common-law  and  there  was  nothing  to  support  the 
courts,  so  that  the  statute  of  uses  does  second  use.  Therefore  it  dropped 
not  seem  to  have  been  \ory  popular.  out  of  sight  at  law.  It  had  no  exist- 
Before  the  statute  of  uses  chancery  i^nce  in  the  eye  of  the  law,  and  of 
would  not  allow  a  use  to  be  declared  course  the  lecal  title  could  not  attach 
m   opposition   to   the   consideration,  itself  to  it.     See,  also,  Tyriel's  Case, 


CH.  I.] 


trusts;  their  general  nature. 


87 


other  words,  that  the  statute  acted  but  once  in  the  same  con- 
veyance ;  and  by  this  means  a  statute  "  made  upon  great  con- 
sideration, introduced  in  a  solemn  and  pompous  manner,"  by 
this  strict  construction,  lias  had  no  otlier  effect  than  to  add  at 
most  three  words  to  a  conveyance/  It  was  also  held  that 
where  the  feoffee  to  uses  was  toconve}'  the  land,  or  t(j  collect  and 
pay  over  the  profits,  tlie  use  was  not  executed.-  The  uses  which 
were  not  executed  by  the  statute  have  been  grouped  by  Mr. 
Sanders  into  six  classes  as  follows :  1.  Contingent  uses,  which 
are  not  executed  during  the  suspense  of  the  contingency  ;  2. 
Uses  limited  of  copyhold  lands  ;  3.  Devises  to  uses  ;  ^  4.  Active 
trusts,  such  as  to  pay  over  profits,  convey  or  sell,  or  to  preserve 
contingent  remainders  ;  ^  5.  Uses  limited  of  chattel  interests ; 
6.  A  use  upon  a  use.^  Probably,  however,  all  the  classes  into 
which  the  uses  which  survived  the  statute  have  been  divided 
may  be  classified  under  two  general  heads :  jirst^  those  uses 
which,  though  falling  within  the  terms  of  the  statute,  were  re- 
leased from  its  operation  by  the  construction  put  upon  it  by 
the  courts,  of  which  the  use  upon  a  use  is  an  example ;  and 
second^  those  uses  which  did  not  fall  within  the  language  of 
the  statute,  such  as  uses  of  chattel  interests."     Whatever  sub- 


Dyer,    155,    a;   Doe    dem.    Lloyd    v 
Passingham,   6   Barn.    &   Cres.    305 
Sanders,  276;  Reid  v.  Gordon,  35  Md 
183;  Croxall  v.  Shererd,  5  Wall.  268 
Matthews  v.  Ward,  10  Gill  &  Johns 
443;  Perry  on  Trusts,  §  6.     See,  also, 
Smith  V.  Oliver,  11  S.  &  R.  257,  where 
it  was  held  that  a  trust  coidd  not 
exist  as  to  a  mere  improvement  right 
which  was  simply  an  equity  against 
the  Commonwealth. 

The  rule  stated  in  the  text  was  of 
great  practical  importance  in  the 
method  of  conveyance  known  as  bar- 
gain and  sale.  By  a  bargain  and  sale 
the  vendor  of  the  land  by  force  of  the 
pecuniary  consideration  of  the  con- 
tract became  seised  to  the  use  of  the 
vendee,  and  it  was  that  use,  so 
created,  that  the  statute  executed 
into  a  legal  estate  in  the  vendee. 
Hence,  as  under  the  above  rule  the 
statute  never  acted  but  once  in  the 


same  conveyance,  it  followed  that 
all  the  limitations  ulterior  to  that  of 
the  conveyance  were  unexecuted;  in 
other  words,  were  trusts.  See  Mat- 
thews V.  Ward,  10  Gill  &  Johns.  444; 
Preston  on  Conveyancing,  482,  483. 

'  Hopkins  v.  Hopkins,  1  Atk.  591. 

-  Sanders,  253. 

^  Though  as  to  this,  see  Doe  dem. 
Cooper  !'.  Finch,  4  Barn.  &  Ad.  305. 

*  Kay  V.  Scates,  37  Pa.  37;  Hart  v. 
Bayliss,  97  Tenn.  80;  Pugh  v.  Hayes, 
113  Mo.  424;  Johnson  v.  Lee,  228  111. 
167. 

^  Sanders  on  L^ses,  240  et  seq. 

°  .\fter  the  passage  of  the  statute  of 
uses  interests  in  land  were  therefore 
of  three  kinds — (1)  the  common-law 
(or  legal)  fee;  (2)  the  use;  (3)  the 
trust.  See  Willett  v.  Sandford,  1 
Ves.  186;  Coryton  v.  Helyar,  2  Cox, 
342;  Perry  on  Trusts,  §  7. 


83  trusts;  tiikiii  (iKXKii.vL  XATURE.  [part  I, 

division,  howev^ei'.  iiiiiy  bo  suggested  by  tlie  convenience  or 
fancy  of  authors,  all  of  these  equitable  interests,  now  under 
consideration,  may  be  treated  as  embraced  in  the  one  great 
family  of  modern  tiusts,  the  origin  of  which  having  been  no- 
ticed, it  will  now  be  p.'oper  to  ])roceed  to  the  consideration  of 
their  different  kinds,  their  manner  of  creation,  and  the  purposes 
for  which  they  are  ordinarily  called  into  existence. 

54.  General  Nature  of  Trusts  ;  Active  and  Passive  Trusts. 

Trusts  in  respect  of  tiie  general  nature  of  the  duties  of 
trustees,  and  the  object  for  which  the  trust  is  created,  may  be 
divided  into  active  and  passive,  lawful  and  unlawful,  executed 
and  executory,  private  and  puljlic. 

An  active  or  special  trust  scarcely  requires  definition.  It 
exists  when  a  trustee  has  certain  duties  to  perform  which  render 
it  necessary,  for  the  purposes  of  the  trust,  that  the  legal  title 
should  reuuiin  in  him.  AVhen  this  is  the  case  the  cestui  que  trust 
is  entitled  only  to  the  beneticial  interest,  and  cannot  call  upon 
the  trustee  to  convey.  For  exani})le  :  where  there  is  a  trust  for 
the  payment  of  debts,  the  trustee  must  necessarily  have  the  legal 
title  of  the  ti'ust  i)roperty  in  him  in  order  to  get  in  the  assets, 
tui'n  them  into  cash,  and  discharge  the  liabilities.  The  credit- 
oi's  whose  debts  are  to  be  paid  have,  therefore,  no  right  to  the 
legal  title  of  the  property  or  to  its  possession.  They  have 
simply  an  interest,  which  a  court  of  equity  will  protect,  in  see- 
ing that  the  trust  is  ])roperly  carried  out. 

A  passive  (or,  as  it  is  sometimes  called,  a  simple)  trust  has 
been  defined  to  be  a  trust  in  which  the  property  is  vested  in  one 
person  upon  trust  for  another,  and  the  nature  of  the  trust,  not 
baing  qualified  by  the  settlor,  is  left  to  the  construction  of  the 
1  i\v.  In  this  case  the  cestui  que  trust  \vabjus  hahendi,  or  right  to 
be  put  in  actual  possession  of  the  property,  and^'ws  disponendi^ 
or  the  right  to  call  upon  the  trustee  to  execute  conveyances  of 
the  legal  estate  as  the  cestui  que  trii.st  directs.^ 

55.  Wlien  Trusts  will  be  executed  by  the  Statute;  Rules 
in  several  States. 

A  trust,  which  at  the  time  of  its  creation  is  a  simple  or 
passive  trust,  will  be  executed  by  the  statute  of  uses,  the  mere 

'  Lewin  (10th  Eng.  ed.),  16.  See  McCune  v.  Baker,  155  Pa.  503;  Mo- 
Mills  V.  Johnston,    [1894]  3  Ch.  204;      Kenzie  v.  Sumner,  114  N.  C.  425. 


CH.  I.]  TRUSTS;   THEIR   GENERAL    NATURE.  80 

circumstance  that  the  word  '•  trust  *"  is  used  instead  of  the  word 
"  use  "  making  no  ditference.'  But  where  a  trust  which  hai. 
heen  once  active  becomes  passive,  or  where  for  any  reason  the 
ti'ustee  becomes  the  liolder  of  a  mere  dry  legal  estate,  such  a 
trust  is  not  necessarily  executed  by  the  statute,  but  the  lega' 
title  may  remain  in  the  dry  trustee."  If  the  mere  fact  that  th(. 
trustee  had  active  duties  to  perform  was  the  only  circumstance 
that  had  prevented  the  statute  from  operating,  the  trust  will 
be  executed  when  the  active  duties  have  ceased.^  But  if  the 
noii-execution  of  the  trust  by  the  statute  did  not  originally  and 
S(jlelv  depend  upon  the  activity  of  the  trust,  the  fact  that  the 
trust  has  ceased  to  be  active  will  not  of  itself  cause  the  statute 
to  apply.^  Under  such  circumstances,  however,  the  trustee  11 
bound  to  convey  the  legal  title  at  the  request  of  the  cestui  qu. 
trust;  ^  and  after  a  great  lapse  of  time,  antl  in  support  of  long 
continued  possession  on  the  part  of  the  person  holding  the  ber, 
eticial  interest,  such  conveyance  will  be  presumed.^ 

Even  if  the  purposes  of  the  trust  have  not  been  all  accora 
plished,  or  the  trust  may  not  have  ceased  by  expiration  o\ 
time,  yet  if  all  the  cestuis  que  trtident  are  in  existence  and  su\ 
juris,  and  consent  thereto,  the  courts  may  decree  the  deter- 
mination of  the  trust  and  a  distribution  of  the  trust-fund  among 
those  entitled.' 

[n  Pennsylvania  the  courts  have  departed  from  the  Enghsh 
doctrine  in  two  particulars ;  first,  in  regarding  some  trusts  tiot 
to  be  active  which  in  England  would  have  been  so  considered  ; 
and,  secondly,  in  holding  that,  in  passive  trusts,  the  use  was 
executed  by  the  statute  in  cases  in  which  in  England  the  ruling 

1  Austen  v.  Taylor,  1  Eden,  ;^61;  Md.  541-542;  Matthews  v.  Ward,  10 
Lewin  on  Trusts  (10th  Eng.  ed.),  Gill  &  Johns.  443;  Jackson  v.  Pierce, 
223-235.  2  Johns.  226;  Aikin  v.  Smith,  1  Sneed, 

2  Hill  on  Trustees,  316.  304;  Den  ex  dem.  Obert  r.  Bordine,  20 

3  See  Perry  on  Trusts,  §  351 ;  Welles  N.  J.  Law,  394 ;  Hill  on  Trustees,  253. 
V.  Castles,  3  Gray,  323;  Liptrot  v.  ^  Smith  v.  Harrington,  4  Allen,  576; 
Holmes,  1  Kelley  (Ga.),  381;  Hooper  Bowditch  v.  Andrew,  8  Id.  339;  Cul- 
V.  Feigner,  80  Md.  271-272;  Hopkins  bertson's  Appeal,  76  Pa.  148;  Armi- 
V.  Kent,  145  N.  Y.  368.  stead  v.  Hartt,  97  Va.  316;  Nye  i'. 

4  See  Perry  on  Trusts,  §  351.  Koehne,    22    R.    I.    118;    Perry    on 

5  Hill  on  Trustees,  316;  Leonard's  Trusts,  §§  274,  922;  Eakle  v.  Ingram, 
Lessee!'.  Diamond,  31  Md.  541;  Sher-  142  Cal.  15;  Tilton  v.  Davidson,  98 
man  v.  Dodge,  28  Vt.  30;  see  Healey  Me.  55;  Welch  v.  Episcopal  Theolog- 
V.  Alston,  25  Miss.  192.  ical  School,  189  Mass.  108;  Olsen  v. 

8  Leonard's  Lessee  v.  Diamond,  31      Youngerman,  136  la.  404. 


90 


trusts;  their  general  nature. 


[part  I. 


would  have  been  dift'ei-ent.  "  Many  trusts,"  it  has  been  said,^ 
"which  would  be  classed  as  active  ones  in  England  would  be 
regarded  here  (in  Pennsylvania)  as  passive,  as,  for  example,  the 
distinction  between  the  trust  to  receive  and  pay  and  one  to  per- 
mit and  sutler  the  cestui  que  tmnit  to  receive  is  not  recognized." 
Indeed  this  doctrine  was  at  one  time  ])ushed  to  great  lengths; 
and  it  was  held  in  Kulin  v.  Newman,-  and  some  other  cases,^ 
that  equitable  were  converted  into  legal  estates  in  all  cases  ex- 
cept those  of  active  trusts,  and  even  fheii  when  the  purposes  of 
the  trust  did  not  furnish  any  legitimate  reason  for  preserving 
it  from  being  executed  in  the  beneficiary.  This  extreme  posi- 
tion was,  however,  subsequently  abandoned,  and  tjie  cases  just 
cited  overruled,^  and  the  law^  is  now  held  to  be  that  where  an 
active  trust  is  created  to  give  effect  to  a  w^ ell-defined  law^ful  pur- 
pose, the  trust  must  be  sustained  whether  the  cestid  que  trust 
be  sui  juris  or  not.^  And,  even  if  the  special  purpose  of  the 
ti-ust  fails,  it  has  been  held  that,  wdiere  the  duties  of  the  trustee 
and  the  instrument  creating  the  trust  are  of  such  a  character 
that  an  ulterior  purpose  for  maintaining  the  trust  is  sufficiently 
evinced,  the  trust  will  be  supported.^  And  dfortiorl.\A  this  the 
case  when  one  special  purpose  of  the  trust  (such  as  for  coverture) 


1  In  Rife  v.  Geyer,  59  Pa.  306.  See 
Philadelphia  Trust  Co.'s  Appeal,  93 
Id.  209;  and  Hemphill's  Estate,  180 
Id.  95. 

2  26  Pa.  227. 

3  Whichcote  v.  Lyle's  Ex'rs,  28  Pa. 
73;  Bush's  Appeal,  33  Id.  85.  See 
also  Williams  v.  Leech,  28  Id.  89; 
Price  V.  Taylor,  Id.  95;  Naglee's  App., 
33  Id.  89;  McKee  v.  McKinley,  Id.  92; 
Kay  V.  Scates,  37  Id.  31. 

4  Barnett's  App.,  46  Pa.  392; 
Shankland's  App.,  47  Id.  113;  Wick- 
ham  V.  Berry,  55  Id.  71;  Hays's  Es- 
tate, 184  Id.  386. 

5  Williams's  Appeals,  83  Id.  377; 
Phillip.s's  Appeal,  80  Id.  472;  Earp's 
Appeal,  75  Id.  119;  Huber's  Appeal, 
80  Id.  348;  Ashhurst's  Appeal,  77  Id. 
464;  Deibert's  Appeal,  78  Id.  297; 
Keene's  Est.,  81  Id.  133.  See  Park- 
er's Appeal,  61  Id.  478;  Little  v. 
Wilcox,  119  Id.  439;  Watson's  Ap- 


peal, 125  Id.  345;  and  Cooper's  Es- 
tate, 150  Id.  576. 

«  Bacon's  Appeal,  57  Pa.  512;  Dunn 
&  Biddle's  Appeal,  85  Id.  94;  Ash's 
Appeal,  80  Id.  497;  Deibert's  Ap- 
peal, 83  Id.  462;  Fidelity  Ins.  Co.'s 
Appeal,  35  Leg.  Int.  203;  Ingersoll's 
Appeal,  86  Pa.  240;  Livezey's  Ap- 
peal, 106  Id.  201. 

Where  a  testator  by  a  codicil  re- 
vokes an  absolute  devise  previously 
given  to  his  son  in  his  will,  and  in  apt 
words  creates  for  the  son  a  spend- 
thrift trust  pure  and  simple,  the 
fact  that  the  codicil  also  contains  an 
express  prohibition  against  liability 
for  the  "support,  contracts,  debts  or 
engagements,"  of  the  son's  present 
wife,  naming  her,  and  directs  that 
such  wife  shall  derive  no  benefit  from 
the  income  or  principal  of  the  trust 
estate,  the  court  has  no  power  after 
the  death  of  the  testator  and  after 


an.  I.] 


trusts;  their  general  nature. 


91 


fails,  yet  another  object  (as,  for  instance,  the  protection  of  re- 
maindermen) subsists.' 

But  when  the  special  purpose  of  the  trust  has  been  deter- 
mined, and  no  general  intention  to  estabhsh  a  continuing  tmst 
outside  the  special  })urpose  appears,  the  trust  will  fall.  Thus, 
wlien  a  trust  for  the  sole  and  separate  use  of  a  married  woman 
h  s  been  created,  and  the  trust  is  one  for  coverture  merely,  and 
the  feme  subsequently  becomes  discovert,  the  trust  will  be 
treated  as  executed,  or,  if  necessary  to  make  the  title  market- 
able, the  trustee  will  be  decreed  to  convey.^  Nor  is  the  trust 
preserved  by  the  mere  circumstance  that  the  machinery  of  an 
active  trust  has  l)een  created  if,  in  the  point  of  fact,  the  object 
for  which  that  machinery  was  designed  has  failed.  "The  mere 
form  of  words,"  it  has  been  said,^  "importing  an  active  trust 
does  not  sustain  the  trust  if  the  purpose  of  its  creation  should 
fail."  And  in  Ogden's  Appeal  ■*  it  was  said  by  the  same  judge: 
"The  trust  for  coverture,  not  being  in  immediate  contemplation 
of  marriage,  never  took  effect,  and  the  active  duties  having  sole 
reference  to  this  supposed  trust  necessarily  fell  with  it.  An  active 
trust,  having  no  object  to  accomplish  for  the  benefit  of  the  cestui 
que  trust,  clearly  will  not  be  continued  for  the  mere  benefit  or 
pleasure  of  the  trustee.  The  ol)ject  of  the  testator  having  failed 
or  ceased,  the  law  will  execute  the  use." 

The  other  departure  of  the  Pennsylvania  doctrine  from  the 
English  rule  is  that,  in  some  cases  where  in  England  the  trust 
would  not  be  executed  (e.  g.,  where  there  is  a  mere  trust  to  con- 
vey),^ the  severance  of  the  legal  and  equital)le  titles  will  not  be 
considered  to  exist,  and  the  legal  fee  will  be  treated  as  having 
passed  to  the  beneficial  owner.**  "It  is  true  that  we  have  in 
some  cases  decreed  conveyances  from  a  trustee  to  a  cestui  que 
trust  when  the  purpose  of  the  trust  has  been  fulfilled,  but  this 


the  son  has  secured  a  divorce  from 
his  wife,  to  declare  the  trust  ended, 
^nd  direct  a  payment  and  transfer 
of  the  trust  estate  to  the  son  fi-ee  and 
discharged  from  the  trust.  Van  Leer 
V.  Van  Leer,  221  Pa.  195. 

1  Kuntzelman's  Estate,  136  Pa.  151. 
See,  also,  Seitzinger's  Estate,  170 
Id.  529,  530;  and  Wolfinger  i-.  P'ell, 
195  Id.  12. 

3  Dodson  V.  Ball,  60  Pa.  492. 

3ln  Yarnall's  Appeal,  70  Pa.  339; 


Bristor  v.  Ta.sker,  135  Id.  117.  To 
the  same  effect  is  Koenig's  Appeal,  57 
Id.  352. 

■*  70  Pa.  501.  The  same  ruling  was 
also  made  in  Williams's  Appeals,  83 
Pa.  377,  390;  see,  also,  Carson  v. 
Fuhs,  131  Id.  256. 

5  See  Yarnall's  Appeal,  70  Pa.  335; 
Barnett's  Appeal,  46  Id.  392;  Nice's 
Appeal,  50  Id.  143. 

6  Bacon's  Appeal,  57  Pa.  504. 


92  trusts;  their  general  nature.  [part  i. 

was  not  because  the  legal  and  ocjuitaljle  titles  remained  apart. 
It  was  to  dissipate  a  useless  cloud  ui)on  the  title  and  to  make 
the  property  more  marketable."  ^ 

And  in  Rife  z?.  Geyer  -  it  was  said  that  in  Pennsylvania,  "when- 
ever the  entire  beneficial  interest  is  in  the  cestui  que  truM  with- 
out restriction  as  to  the  enjoyment  of  it,  there  is  no  reason  why 
it  should  not  be  considered  as  actually  executed.  No  formal 
conveyance  of  the  legal  estate  is  necessary,  though  it  will  be 
decreed,  because  the  nominal  trust  beclouds  the  title  and  em- 
barrasses the  rights  of  alienation  which  belong  to  the  true 
owner."  ^ 

The  return  of  trusts  into  favor,  as  shown  by  Barnett's  Ap- 
peal '*  and  Shankland's  Ap))eal,"''*  is  further  illustrated  by  subse- 
quent cases,  cited  in  the  note,  in  which  the  trusts  were  iqjhekl.'* 
These  last-mentioned  cases  are  illustrations  of  that  portion  of 
the  rule,  just  mentioned,  which  has  relation  to  the  quantity  of 
the  estate  vested  in  the  beneficiary.  When  the  entire  bene- 
ficial interest  is  vested  in  the  beneficiary,  and  the  trust  has  be- 
come a  simple  or  passive  one,  the  use  will  be  considered  as  exe- 
cuted, or  (if  needful  for  the  marketability  of  the  title)  the  tmstees 
will  be  decreed  to  convey.'^  But  where  the  estate  of  the  bene- 
ficiary is  but  partial,  the  same  rule  does  not  apply,  and  the  tmst 
will  be  sustained.** 

The  Pennsylvania  decisions  u{)on  this  subject  have  been  no- 
ticed with  some  })articularity,  as  in  them  the  distinctions  be- 
tween active  and  passive  trusts,  and  between  those  which  are 
and  those  which  are  not  executed  ])y  the  statute,  have  been, 
perhaps,  more  frequently  investigated  than  elsewhere;  and  the 
fluctuations  of  opinion  which  have  taken  place  upon  the  subject 

1  Bacon's  Appeal,  57  Pa.  504.  it  was   held   that,  on  the  death  of  a 

2  59  Pa.  ;596.  Approved  in  Cham-  feme  covert,  the  separate  use  will  be 
berlain   v.    .Maj^nes,    ISO    Id.    39-42.  considered  as  executed   without  the 

3  See  also  Kay  r.  Scales,  37  Pa.  40;  necessity  of  a  conveyance. 
Megargee  v.  Naglee,  (54  Id.  216;  Kuhn  *  46  Pa.  392. 

V.  Newman,  26  Id.  227 ;  Rush  v.  Lewis,  &  47  Id.  1 13. 

21  Id.  72;  Bush's  Appeal,  33  Id.  85;  «  Earp's  .\ppeal,  75  Pa.  119;  Ash- 
Bacon's  .\ppeal,    57   Id.   504;   PVey-  hurst's  Appeal,  77  Id.  464;  Spring's 
vogle  V.  Hughes,  56  Id.  228;  Westcott  Estate,  216  Pa.  529. 
r.  Edmunds,  68  Id.  37;  Tucker's  Ap-  7  See  Sharpless's   Estate,    151   Pa. 
peal,  75  Id.   354.     See,  also,  in  this  214. 

connection,  Hayes  i\  Tabor,  41  N.  H.  »  See    Earp's    .\ppeal,    .\shhurst's 

521.     Reference  may  also  be  had  to  .\ppeal    {supra).      See,    also,    Stam- 

Roberts  V.  Moseley,  51  Mo.  282,  where  baugh's  Estate,  135  Pa.  585. 


CH.  I.]  trusts;  their  general  nature.  93 

have  furnishetl  an  episode  in  the  history  of  trusts  which  it  is  use- 
ful to  study. 

At  one  time  no  court  possessed  of  equity  powers  existed  in 
Massachusetts.  It  was  accordingly  held,  while  the  law  was  in 
that  condition,  that  a  trust  should  be  treated  as  a  use  executed, 
unless  such  a  constmction  would  be  repugnant  to  the  manifest 
intention  of  the  instrument.^  It  will  be  remembered,  however, 
that  the  courts  of  that  state  now  have  ecjuity  powers. ^ 

In  some  states,  as  in  New  York,  Michigan,  Louisiana,  and 
Wisconsin,  trusts  have  been  abolished,  except  within  very  nar- 
row limits. ■"*  In  the  state  last  named,  however,  it  has  been  held 
that  passive  trusts  only  were  abolished  by  the  statute,  and  that 
active  trusts  may  still  be  created."* 

The  provision  of  the  statute  of  usts,  and  the  construction  put 
upon  that  act,  have  been  already  explained.^  In  nearly  all  of 
the  United  States  this  statute  is  in  force  or  its  provisions  have 
been  adopted  by  legislative  enactments.*^  The  only  exceptions 
to  this  rule  appear  to  be  \"ermont,'  Tennessee,^  and  Ohio,^  and, 
to  a  limited  extent,  Virginia,  North  Carolina,  Florida,  Missis- 
sippi, Kentucky,  Illinois,  and  California.'"  Even  in  some  states 
w^here  the  statute  is  not  in  force,  and  has  not  been  applied,  uses 
are  executed  by  a  sort  of  common  law.''    This  theory  was  in- 

1  Norton  v.  Leonard,  12  Pick.  l')?.  234;  Witham  i\  Brooner,  68  111.  344; 

^Ante,  p.  24.  Hutchiiis  r.  Heywo  hI,  50  N.  H.  497; 

3  See  Voorhccs  v.  PresbytcMiaii  Ch.,  and  ]\Iclick  r.  Pidcock,  44  N.  J.  Eq. 
17  Barb.  103;  Campbell  v.  Campbell,  .525;  Teller  r.  Hill,  18  Colo.  App. 
70  Wis.  311;  Hannig  v.  Mueller,  82  509. 

Wis.  235.  7  Gorham  r.  Daniels,  23  Vt.  600. 

4  Goodrich  r.  The  City  of  Milwau-  « Jourolmon  v.  Masscngill,  S6 
kee,  24  Wis.  429.  See  Backhaus  v.  Tenn.  91;  Temple  v.  Ferguson,  110 
Backhaus,    70    Id.    518;    Holmes    v.  Tcnn.   84. 

Walter,  118  Wis.  409.     In  Georgia  a  "  Helfcnstinc    v.    Garrard,    7    Ohio 

trust   estate   cannot   be   created   for  (O.  S.),  27(). 

the  benefit  of  persons  «iti  juris;  in  such  'o  Perry  on  Trust  s,  §  299 ;  McCurdy 

a  case  the  statute  of  uses  immediately  r.  Otto,   140  Cal.  48;  Fair's  Estate, 

transfers  the  legal   estate  to  the  use  i:)2    Cal.    523,    and    West    Virginia, 

and  no  trust  is  created,  although  ex-  Blake  v.  O'Neal,  63  W.  Va.  483. 
press  words  of  trust  be  used.    Thomp-  n  Bacon    r.    Taylor,    Kirby,    368; 

son  v.  Sanders,  118  Ga.  928.  Bryan    r.    Bradley,    16    Conn.    483; 

5  Ante,  pp.  85,  86,  87.  Coughlin  v.  Seago,  53  Ga.  250;  Sher-  • 
«  See  Perry  on  Trusts,  §  299,  note,  man   v.   Dodge,   28   Vt.   31;   Society 

for  a  detailed  statement  of  the  stat-  for  Propagation  of  the-  Gospel  v. 
utes  and  decisions  in  the  different  Town  of  Hartland,  2  Paine  C.  C.  539; 
Btatee;  also,  French  v.  French,  3  N.  H.      Guest  v.  Farley,  19  Mo.  149. 


94  trusts;  their  general  nature.  [part  i. 

deed  pushed  to  great  lengths  in  Pennsylvania,  where  (as  has 
been  already  stated)  it  was  at  one  time  held  that  equitable  were 
converted  into  legal  estates  in  all  cases  except  those  of  active 
trusts,  and  even  then  when  the  purposes  of  the  trust  did  not 
furnish  any  legitimate  reason  for  preserving  it  from  being  exe- 
cuted in  the  beneficiary.^  But  this  extreme  position  was  subse- 
quently abandoned  by  the  courts,  and  the  law  restored  to  its 
former  basis.^ 

The  general  tendency  of  the  American  courts  is,  perhaps,  to 
give  a  very  liberal  effect  to  the  statute  of  uses  and  the  kindred 
acts.  Thus,  the  strict  rule  adopted  in  Tyrrel's  case,  that  a  use 
limited  upon  a  use  will  not  be  executed,  has  been  disapproved 
in  Massachusetts ;  ^  and  it  has  been  doubted  by  a  learned  author 
whether  the  mle  in  Tyrrel's  case  is  to  be  regarded  as  a  rule  of 
construction  in  all  or  any  of  the  United  States.'*  But  in  some 
states  the  rule  in  Tyrrel's  case  is  adhered  to.  Thus,  in  Guest  v. 
Farley,^  it  was  distinctly  decided  that  where  a  use  was  hmited 
upon  a  deed  of  bargain  and  sale,  it  was  not  executed  by  the 
statute,  even  though  the  consideration  moved  from  the  cestui 
que  use. 

It  must  be  remembered  that  the  statute  of  uses  did  not  ex- 
tend to  personalty ;  and  this  is  perhaps  the  general  rule  through- 
out the  United  States,  although  the  subject  is,  of  course,  regu- 
lated by  the  language  of  the  particular  statute  in  each  state  .^ 

When  active  duties  are  to  be  performed  by  the  trustee  the 


1  Kuhn  V.  Newman,  26  Pa.  227;  Yarnall's  Appeal,  70  Pa.  335;  Dodson 
Whichcote  v.  Lyle's  Ex'rs,  28  Id.  73;  v.  Ball,  60  Id.  492;  Tucker's  Appeal, 
Bush's  Appeal,  33  Id.  85.  See,  also,  75  Id.  354;  and  Megargee  v.  Naglee, 
Williams  v.  Leech,  28  Id.  89;  Price  v.  64  Id.  216. 

Taylor,  Id.  95;  Naylor's  Appeal,  33  ^  Per  Dana,  C.  J.,  in  Thatcher  i'. 

Id.  89;  McKee  v.  McKinley,  Id.  92;  Omans,  3  Pick.  528. 

Kay  V.  Scates,  37  Id.  31.  *  1     Greenleaf's    Cruise    on    Real 

2  Barnett's    Appeal,    46    Pa.   392;  Prop.   353,    note;    Perry   on   Trusts 
Shankland's  Appeal,  47  Id.  113.    See,  §  302. 

also,    Bacon's   Appeal,    57    Id.    504.  s  19  Mo.  147.     See,  also,  Price  v. 

In  Ogden's  Appeal,  70  Id.  501,  there  Sisson,  13  N.  J    Eq.  173;  Croxall  v. 

was  a  trust  for  the  sole  and  separate  Shererd,    5    Wall.    282;    Jackson    v. 

use  of  a.  feme  sole  not  in  contempla-  Myers,   3   Johns.   396;   and   Jackson 

tion  of  marriage;   and   it  was  held  v.  Gary,  16  Id.  302. 

that,  as  the  separate  use  was  void,  «  Denton    v.  Denton,  17   Md.  403; 

the  trust  fell  to  tiie  ground  in  spite  of  Slevin  v.  Brown,   32  Mo.   176;  Rice 

the  fact  that  the  trustees  had  active  v.  Burnett,  1  Speer's  Eq.  Rep.  586; 

duties    to    perform.      Consult,    also,  Perry  on  Trusts,  §  303. 


CH.  I.]  trusts;  their  general  nature.  95 

rule  in  the  United  States  is  generally  the  same  as  in  England, 
and  the  trust  will  not  be  executed. - 

56.  Lawful  and  Unlawful  Trusts. 

Trusts  may  either  be  lawful  or  unlawful.  A  lawful  trust  is 
one  which  is  created  for  some  fair  and  honest  purpose  recog- 
nized by  law ;  such  as  for  the  payment  of  debts,  for  a  married 
woman,  for  a  proper  charity,  or  the  like.  Tmsts  are  unlawful 
when  they  are  created  for  some  object  which  is  in  contraven- 
tion of  public  policy,  or  in  violation  of  statutes.  Thus  a  trust 
for  a  vicious  or  immoral  purpose  would  be  void  at  common  law, 
because  it  is  against  public  propriety  and  policy.  So  trusts  in 
violation  of  the  statutes  of  mortmain,  of  the  statutes  in  regard 
to  aliens,  or  of  th,e  law  against  accumulation,  or  the  creation 
of  perpetuities,  are  also  bad.-  Equity,  while  it  creates  a  new 
title,  viz.,  the  trust,  will  not  uphold  it  for  the  purpose  of  vio- 
lating the  law.^ 

57.  Executed  and  Executory  Trusts. 

Trusts  are  also  either  executed  or  executory.  These  terms  have 
been  already  defined.^  The  test,  according  to  Lord  St.  Leonards, 
is  this:  Has  the  testator  been  what  is  called,  and  very  properly 
called,  his  own  conveyancer?  Has  he  left  it  to  the  court  to 
make  out  from  general  expressions  what  his  intention  is ;  or  has 
he  so  defined  that  intention  that  you  have  nothing  to  do  but 
to  take  that  which  he  has  given  to  you  and  to  convert  them  into 
legal  estates?  ^ 

1  Stanley  v.  Colt,  5  Wall.  119,  states.  See  Perry  on  Trusts,  Chap. 
168;   Leggett   v.   Perkins,    2  Comst.       XIII. 

297;    Morton    v.    Barrett,    22    Me.  3  gee  Bacon  on  Uses,  9;  Servis  v. 

261;    Exeter   v.    Odiorne,    1    N.    H.  Nelson,    1    McCart.    94;    Perry    on 

232;  Ashhurst  v.  Given,  5  W.  &  S.  Trusts,  §  21.    See,  however,  Baker  t*. 

327;  Chapin  v.  Universalist  Soc.,   8  Williamson,  4  Pa.  456,  and  Tritt  v. 

Gray,  580.     Kidwell  v.    Godfrey,    14  Crotzer,  13  Id.  451. 

Haw.     138;    Chicago   R.    R.    Co.    v.  *  Supra,  Introduction,  chap.  II,  p. 

Winslow,  216  111.    166.      A  trust  to  29. 

"permit  and  suffer"    the   cestui   que  5  Egerton  v.  Brownlow,  4  H.  L.  Cas. 

trust  to   receive  the  rents  and  prof-  210;   Sackville-West   v.   Holmesdale, 

its  of  an  estate  is  not  an  active  trust.  L.  R.  4  H.  L.  565;  Tillinghast  v.  Cog- 

Wagstaff  V.  Smith.  9  Ves.  520;  Perry  geshall,  7  R.  I.  383;    Gaylord  v.  La 

on  Trusts,    §  :!()();  Hill  on  Trustees,  Fayette,    115  Ind.  423;  Cornwell  v. 

233.  Orton,    126  Mo.   355;   Glenorchy  v. 

2  It  would  be  impossible  in  a  work  Bosville,  1  Lead.  Cas.  Eq.  1,  and 
like  the  present  to  notice  these  stat-  notes. 

utes  in  detail — they  vary  in  different 


96 


trusts;  their  general  nature. 


[part  I. 


In  an  executed  trust  the  instrument  must  be  interpreted  ac- 
cording to  the  rules  of  law,  which  are,  in  general,  the  same  for 
equitable  as  for  legal  estates,  although  by  such  interpretation 
the  in  tendon  may  be  defeated.  Thus,  if  an  estate  is  given  to  A. 
and  his  heirs,  in  tiiist  for  B.,  for  life,  with  remainder  to  the  heirs 
of  B.,  the  interest  which  B.  will  take  will  be  construed,  under 
the  rule  in  Shelly 's  case,  to  be  a  fee.^  But,  if  the  instrument 
were  designed  to  be  merely  a  minute  or  draft  of  a  scheme  for 
settling  an  estate,  the  same  provision  would  be  construed  as 
indicating  an  intention  to  give  B.  an  estate  for  life  only,  and 
that  the  persons  designated  as  heirs  should  take  by  purchase. 
AMion,  therefore,  the  formal  instrument,  by  which  the  minute  is 
to  be  carried  out,  comes  to  be  drawn,  a  court  of  equity  will  see 
that  a  settlement  is  made  which  will  in  due  form  of  legal  con- 
veyancing effectuate  the  intention  of  the  creator  of  the  trust — 
that  is,  the  conveyance  will  be  drawn  in  such  a  way  that  B.  will 
take  but  a  life  estate,  and  the  parties  intended  to  be  described 
by  the  word  "heirs,"  Avill  take  as  purchasers  in  the  remainder.' 

The  distinction  between  executed  and  executor}-  trusts  was 
once  much  shaken  by  the  decision  of  Lord  Hardwicke,  in  Bag- 
shaw  V.  Spencer;''  but  that  learned  chancellor  subsequently 
receded  from  his  position.'*  and  the  difference  between  the  two 
classes  of  trusts  is  now  well  settled,  both  in  England  and 
America.^ 

In  ascertaining  the  intention  in  cases  of  executory  trusts,  it 
must  be  remembered  that  in  marriage  articles  there  is  always 
supposed  to  be  a  design  to  lienefit  the  issue  of  the  proposed 
marriage:  but  no  such  intention  is  presumed  to  exist  in  regard 
to  wills.     A  chancellor,  therefore,  in  decreeing  a  settlement  in 


1  See  Wright  v.  Pearson,  1  Eden, 
119;  Austen  r.  Taylor.  Id.  861;  Jones 
?'.  Morgan,  1  Bro.  C.  C.  206;  Jervoise 
V.  Duke  of  Northumberland,  1  J.  & 
W.  5:i9;  Price  r.  Sisson,  13  N.  J.  Eq. 
168;  Dennison  v.  Goehring,  7  Pa.  177. 

■i  Sackville-West  v.  Holme.sdale.  L. 
II.  4  H.  L.  565;  Wood  v.  Burnham, 
6  Paige,  513;  Porter  v.  Doby,  2  Rich. 
Eq.  49;  Saunders  v.  Edwards,  2  .Ion. 
Eq.  134;  (ilenoirliy  r.  Bosvillc,  1 
Lead.  Cas.  E(i.  20,  and  notes;  Perry 
on  Trusts,  §  359;  Yarnall's  .\ppeal, 
70  Pa.  340;  Bacon's  Appeal,  57  Id. 


504;  Neves  r.  Scott,  9  How.  211;  13 
Id.  26S;  .Jervoise  r.  Northumberland, 
1  J.  &  W.  570;  Hooker  v.  Montague, 
123  N.  C.  154. 

3  2  Atk.  142;  1  Ves.  142,  152. 

4  Exel  V.  Wallace,  2  Ves.  323. 

5  Dennison  r.  Goehring,  7  Pa.  177; 
Wood  ('.  Burnham,  6  Paige,  518;  26 
Wend.  9;  Home  v.  Lyeth,  4  H.  &  J. 
434;  Garner  r.  Garner,  1  Dessaus. 
444;  Loving  /-.  Hunter,  S  Yerger,  31; 
Edmond.son  r.  I)y.son,  2  Kelly,  307; 
Berry  v.  Williamson,  11  B.  Hon. 
245. 


CH.  I.]  trusts;  their  general  nature.  97 

conformity  with  marriage  articles,  will  always  take  care  that 
the  issue  are  provided  for;  but  no  such  care  will  be  taken  in 
the  case  of  wills,  unless  in  obedience  to  some  intention  expressed 
in  the  will.^  As  to  what  will  be  sufficient  evidence  of  intention, 
the  authorities  are  not,  perhaps,  altogether  uniform. ^ 

Where,  however,  the  intention  of  the  testator  to  benefit  the 
issue  sufficiently  appears,  the  settlement  will  be  made  in  such  a 
manner  as  to  effectuate  that  intention.'"'  There  is,  indeed,  no 
difference  between  the  rules  applicable  to  marriage  articles  and 
those  in  regard  to  wills,  further  than  this,  viz.,  that  in  the  former 
instruments  res  ipsa  loquitur,  the  occasion  itself  testifies  what 
the  paramount  object  of  the  parties  must  have  been.^ 

Where  there  are  executory  trusts  of  personalty,  heirlooms, 
etc.,  as  to  which  the  ordinary  limitations  applicable  to  real 
estate  would  defeat,  in  many  instances,  the  intention  of  the  tes- 
tator, because  it  would  give  a  tenant  in  tail  (for  instance)  abso- 
lute control,  equity  will  see  that  the  limitations  are  of  such  a 
nature  as  to  prevent  the  intention  from  being  defeated.^ 

58.  Reformation  of  Executory  Instruments  Creating 
Trusts. 

A  court  of  equity  will  entertain  jurisdiction  not  only  for  the 
purpose  of  carrying  out  executory  trusts,  and  seeing  that  the 
instrument  which  purports  to  fulfil  the  intention  of  the  settlor 
really  does  so,  but  also  for  the  purpose  of  reforming  conveyances 
which  have  been  improvidently  drawn,  and  by  which  the  ob- 
jects sought  to  be  reached  by  the  executory  minute  or  draft 
have  not  been  attained.  Where  such  an  improvident  instru- 
ment has  been  executed,  equity  will,  as  a  general  rule,  reform  it, 
and  order  it  to  be  redrawn  in  such  a  way  as  to  effectuate  the  in- 
tention of  the  parties,®  and  the  reformation  may  be  decreed  even 
after  the  death  of  the  husband.^    But  where  both  articles  and 

1  Blackburn  v.  Stables,  2  Ves.  &  B.  Scarsdale  v.  Curzon,  1  Johns.  &  H. 
369;  Sweetapple  v.  Bindon,  2  Vern.  40;  Shelley  v.  Shelley,  L.  R.  6  Eq. 
536;  Perry  on  Trusts,  §§  360,  366.  546. 

2  See  American  note  to  Glenorchy  «  Warrick  v.  Warrick,  3  Atk.  293. 
V.  Bosville,  ut  sup.  See,  also,  Neves  v.  Scott,  9  How.  197; 

3  Sackville-West  v.  Holmesdale,  L.  Cause  v.  Hale,  2  Ired.  Eq.  241;  Smith 
R.  4  H.  L.  565.  v.  Maxwell,  1  Hill  Eq.  101;  Green  v. 

*  Id.    This   case    contains   a   very      Rumph,  2  Id.  1. 

full  discussion  of  the  law  upon  this  "  Viant's  Settlement,  L.  R.  18  Eq. 

point.  436;  Smith  v.  Iliffe,  20  Id.  666;  Co- 

*  Stanley  v.  Leigh,  2  P.  Wms.  690;      gan  v.  DufEeld,  Id.  789. 

/  Ai«i^  2r/  |v  >'-3       ^ 1—    /-i 


98  trusts;  their  general  nature,  [part  i. 

settlement  are  previous  to  the  marriage,  at  a  time  when  all  par- 
ties are  at  liberty,  the  settlement  differing  from  the  articles  will 
be  taken  as  a  new  agreement  between  them,  and  will  control 
the  articles.' 

If  the  intention  expressed  in  the  minute  cannot  be  carried 
out  without  violating  some  statute  or  policy  of  the  law,  equity 
will  carry  it  out  as  nearly  as  possible,  so  as  to  reconcile,  as  far 
as  may  be,  the  law  and  the  intention  of  the  settlor.^ 

59.  Public  and  Private  Trusts. 

In  regard  to  the  division  of  trusts  into  public  and  private 
trusts,  it  will  be  sufficient  to  remark  that  public  trusts  are  such 
as  are  constituted  for  the  benefit  either  of  the  public  at  large, 
or  of  some  considerable  portion  of  it  answering  to  a  particular 
description ;  and  that  private  trusts  are  those  wherein  the  bene- 
ficial interest  is  vested  absolutely  in  one  or  more  individuals 
who  are,  or  within  a  certain  time  may  be,  definitely  ascertained, 
and  who  are,  therefore,  collectively,  unless  under  some  legal 
disabihty,  competent  to  control,  modify,  or  determine  the  trust.^ 
The  principal  difference  in  the  nature  of  the  two  kinds  of  trusts 
is,  that  those  of  a  public  character  are  not  confined  within  the 
limits  prescribed  for  settlements  upon  private  trusts,  but  are  of 
a  more  permanent  and  lasting  character.  This  distinction  will 
be  more  fully  noticed  when  the  subject  of  charitable  trusts 
(which,  indeed,  have  been  said  to  be  synonymous  with  ])ubfic 
trusts)^  is  considered.^ 

In  {)rivate  trusts  the  devolution  of  the  cestui  que  trusts  estate, 
and  the  incidents  of  his  ownership  are,  as  a  general  rule,  the 
same  as  those  of  legal  estates. 

60.  (jeneral  Rules  for  the  Devolution  of  Equitable  Estates. 

The  rules  for  the  descent  of  equitable  estates  are  the  same 
as  those  which  regulate  the  devolution  of  legal  titles ;  ^  equitable 
interests  are  within  the  statute  of  distributions,  and,  it  is  pre- 

1  Legg  V.  Goldwire,  Cas.  t.  Talbot,  Wms.  632;  s.  c.  2  Vern.  737;  Prec. 
20;  1  Lead.  Cas.  Eq.  17.    T'nless  it  is       Ch.  455. 

shown    that    the    discrepancy    arose  3  Lewin,  18  (10th  Eng.  ed.).     See, 

from  a  clear  mistake,  in  which  case  also,    Doyle   v.    Whalen,    87    Maine, 

the    settlement     will    be    reformed.  414-425. 

Bold  V.  Hutchinson,  5  D.,  M.  &  Ci.  <  Id. 

558.  5  Post,  chap.  V. 

2  Humbertson  v.  Humbertson,  IP.  «  Lewin  on  Trusts  (10th  Eng.  ed.). 


CH.  I.] 


trusts;  their  general  nature. 


99 


sumed,  fall  under  the  operation  of  the  intestate  acts  throughout 
the  United  States.^  Whatever  would  be  the  rule  of  law,  if  it 
were  a  legal  estate,  is  applied  in  equity  to  a  trust  estate. ^  A 
husband  is  entitled  to  an  estate  by  the  curtesy  in  his  wife's 
equitable  estates  of  inheritance,  even  though  settled  to  her  sep- 
arate use;  ^  and  he  will  be  entitled,  at  common  law,  to  her  equi- 
table personalty,  except  in  so  far  as  his  rights  are  controlled  by 
the  doctrine  of  the  wife's  equity  to  a  settlement.'*  By  an  anom- 
alous decision,  however,  a  wife  in  England  is  not  dowable  of  a 
trust  estate.^  But  the  rule  in  most  of  the  United  States  appears 
to  be  different,  it  having  in  some  states  been  altered  by  statute ;  ® 
and  the  point  in  England  has  ceased  to  be  of  practical  impor- 
tance.'' 

Before  the  statute  of  uses  it  had  been  decided  that  the  estate 
of  the  cestui  que  use  was  not  subject  to  forfeiture  and  escheat, 
but  that  the  feoffee  to  uses  became  thereupon  the  absolute 
owner.*  After  the  statute  the  same  rule  was  applied  to  trusts.^ 
By  a  subsequent  statute  the  estate  of  the  cestui  que  trust  was  for- 
feited for  treason;^"  but  upon  forfeiture  for  felony  or  escheat 
the  trustee  took  the  estate  discharged  of  the  tiTist.^^  Now,  by 
the  Intestates  Estates  Act  of  1884  all  estates  or  interests  in 
realty,  whether  legal  or  equitable,  in  respect  of  which  any  per- 
son dies  without  an  heir  and  intestate,  are  subject  to  the  law  of 


1006;  Cornwell    v.    Wulff,    148    Mo. 
542. 

1  Faries'  Appeal,  23  Pa.  29. 

2  Burgess  v.  Wheate,  1  Black.  R 
155,  161;  Croxall  v.  Shererd,  5  Wall 
281;  Price  v.  Sisson,  13  N.  J.  Eq 
174;  Cornwell  v.  Orton,  126  Mo 
355. 

3  Roberts  v.  Dixwell,  1  Atk.  607; 
Morgan  v.  Morgan,  5  Madd.  408;  Fol- 
lett  V.  Tyall,  14  Sim.  125;  Appleton 
V.  Rowley,  L.  R.  2  Eq.  139;  Cooper 
V.  MacDonald,  L.  R.  7  Ch.  D.  288; 
Lewin  on  Trusts  (10th  Eng.  ed.),  9, 
236,  899;  Ege  v.  Wedlar,  82  Pa.  86; 
Dubs  V.  Dubs,  31  Id.  149.  Unless 
there  is  a  clear  intention  to  exclude 
the  husband's  title;  Cochran  v. 
O'Hern,  4  W.  &  S.  99;  Stokes  v.  Mc- 
Kibbin,  13  Pa.  268;  Rigler  v.  Cloud, 
14  Id.  363. 


•*  Hill  on  Trustees,  405;  4  Kent's 
Com.  30;  post,  chap.  IV. 

s  D'Arcy  v.  Blake,  2  Sch.  &  Lef. 
387;  Dixon  v.  Saville,  1  Bro.  Ch.  326; 
Mayburry  v.  Brien,  15  Pet.  38. 

^  Williams  on  Real  Prop.  214,  note 
Shoemaker  v.  Walker,  2  S.  &  R.  554 
Smiley  v.  Wright,  2  Ohio  (O.  S.)  507 
Crabb  v.  Pratt,  15  Ala.  843. 

7  By  the  passage  of  the  Dower  Act, 
3  &  \  Will.  IV.,  c.  105. 

» See  Burgess  v.  Wheate,  1  Eden, 
199. 

9  Att.-Gen.  v.  Sands,  1  Hale  P.  C. 
249. 

io33Hen.  VIII.,c.  20. 

11  Att.-Gen.  v.  Sands;  Burgess  v. 
Wheate  {supra);  In  re  Lashmar 
[1891],  1  Ch.  258.  See  also  Onslow  v. 
Wallis,  1  Mac.  &  G.  506;  Sweeting  v. 
Sweeting,  33  L.  J.  Ch.  211. 


100 


trusts;  their  general  nature. 


[part  I. 


escheat,  in  like  manner  as  if  the  estate  or  interest  were  legal.' 
But  this  rule  does  not  apply  to  chattels  nor  to  an  equity  of  re- 
demption. 

In  the  United  States  the  opinion  is  that  the  state  would  take 
l>oth  real  and  j)ersonal  property  as  ultimus  hapres}  If  the  legal 
title  to  real  estate  cannot  be  taken  by  an  alien y  the  beneficial 
ownership  cannot  be  enjoyed  by  him.-' 

61.  Alienation  of  Equitable  Estates;  Liability  for  Debts. 

The  right  of  alienation,  by  deed  and  will,  attaches  to  ef|uitable 
estates,  and  any  restrictions  upon  that  right  are  invalid,  and 
moreover  the  incident  of  involuntary  alienation,  or,  in  other 
words,  the  liability  of  the  estate  to  be  taken  in  execution  for 
the  debts  of  the  beneficial  owner,  also  applies  to  such  estates. 
There  may,  indeed,  be  a  limitation  over  upon  the  banki'uj)tcy 
or  insolvency  of  the  cestui  que  trust,  or  upon  the  happening  of 
any  event  whereby  the  property  may  belong  to  some  other 
person;  and  such  limitations  are  of  frecjuent  occurrence."*  But 
the  cestui  que  trust  cannot  hold  the  property  for  the  purposes  of 
enjoyment  freed  from  the  duty  of  applying  it  in  discharge  of  his 
obligations.^  It  is  a  settled  nde  of  law  that  the  beneficial  in- 
terest of  the  cestui  que  trust,  whatever  it  may  be,  is  liable  for  the 
payment  of  his  debts,  and  it  cannot  be  so  fenced  about  by  in- 
hibitions and  restrictions  as  to  secure  to  it  the  inconsistent 
characteristics  of  right  and  enjoyment  to  the  beneficiary  and 
immunity  from  his  creditors.  A  condition  precedent  that  the 
provision  shall  not  vest  until  his  debts  are  paid  and  a  condition 


1  Stat.  47  and  48  Vict.,  c.  71,  §  4. 

2  See  Matthews  v.  Ward,  10  Gill  & 
J.  454. 

3Du  Hourmelin  d.  Sheldon,  1  Beav. 
79;  4  M.  &  C.  525;  Atkins  v.  Kron,  5 
Ired.  Eq.  207;  Hubbard  v.  Goodwin,  S 
Leigh,  492;  2  Kent's  Com.  *62,  note 
d;  Leggett  v.  Dubois,  5  Paige,  114; 
Taylor  v.  Benham,  5  How.  270.  See, 
also,  Sharp  v.  St.  Sauveur,  L.  R.  7  Ch. 
352;  overruling  Kittson  r.  Stordy,  3 
Sm.  &  Giff.  230;  and  approving  Bar- 
row V.  Wadkin,  24  Beav.  1. 

*  See  Williams  on  Real  Prop.  87, 
and  notes.  And,  of  course,  there 
may  be  a  limitation  so  expressed  that 


no  equitable  or  legal  estate  vests  in 
the  beneficiary,  in  which  case  he  has 
nothing  which  he  can  alienate.  See 
Hanna's  Extr.  v.  Raynolds,  16  U.  S. 
App.  679-701. 

5  Dumpor's  Case,  1  Sm.  Lead.  Cas. 
119,  Judge  Hare's  note.  Sec,  also, 
Horberrjf  v.  Harding,  10  Lea  (Tenn.), 
392;  Warner  v.  Rice,  66  Md.  430. 
Ullman  r.  Cameron,  186  N.  Y.  339. 
A  judgment  creditor  is  entitled  to  the 
proportion  of  income  from  a  trust 
estate  beyond  what  is  necessary  for 
the  suitable  support  and  mainte- 
nance of  the  cestui  que  trust.  Mag- 
uer  V.  Crooks,  139  Cal.  640. 


CH.  I.] 


TRUSTS,   THEIR   GENERAL    NATURE. 


101 


subsequent  that  it  shall  be  divested  and  forfeited  by  his  in- 
solvency, with  a  limitation  over  to  another  person,  are  valid,  and 
the  law  will  give  them  full  effect.  Beyond  this,  protection  from 
the  claims  of  creditors  is  not  allowed  to  go.^  This  is  the  general 
rule  throughout  the  United  States  and  in  England.  In  some  of 
the  states  of  the  Union,  however,  a  different  doctrine  has  been 
held.  Thus,  in  Pennsylvania,  it  is  now  firmly  established  l^y 
many  authorities  that  when  a  gift  in  trust  is  made  for  life,  coupled 
with  a  proviso  exempting  the  estate  of  the  cestui  que  trust  from 
liability  for  his  debts,  and  where  he  is  excluded  from  the  control 
of  the  property,-  such  proviso  will  be  good  witliout  any  limi- 
tation over  upon  insolvency.^     And  this  end  may  be  accom- 


1  Nichols  V.  Levy,  5  Wall.  441 ;  Hal- 
lett  V.  Thompson,  5  Paige,  583;  Dick 
V.  Pitchford,  1  Dev.  &  Bat.  (Eq.)  480; 
Blackstone  Bank  v.  Davis,  21  Pick. 
42;  Easterly  v.  Keney,  36  Conn.  22; 
Taylor  v.  Harwell,  65  Ala.  1  (compare 
Jones  V.  Reese,  Id.  134);  Brandon  v. 
Robinson,  18  Ves.  429.  See  Hutch- 
ins  V.  Heywood,  50  N.  H.  491,  where 
it  was  held  that  a  resulting  trust  was 
executed  by  the  statute  of  uses,  and 
could  be  levied  upon  under  ordinary 
process. 

2  See  Adams's  Eq.  43.  There  can 
be  no  valid  spendthrift  trust  where 
the  beneficiary  is  also  the  trustee  and 
has  full  power  to  deal  with  the 
property  at  his  pleasure.  Hahn  v. 
Hutchinson,  159  Pa.  133-141.  Where 
a  married  woman  by  her  will  gives 
her  estate,  real  and  personal,  to  a 
trustee  for  the  benefit  of  her  husband 
with  the  usual  provisions  creating  a 
spendthrift  trust,  and  further  di- 
rects that  after  the  expiration  of 
three  years  the  trustee  shall  convey 
the  real  estate,  or  deliver  the  per- 
sonal property  to  any  person  whom 
the  husband  may  direct,  and  if  the 
husband  makes  no  direction  to  con- 
tinue the  trust  until  the  death  of 
the  husband,  to  convey  and  deliver 
the  estate  to  whom  he  may  appoint 
by  will,  or  in  default  of  appointment 


to  his  heirs  at  law,  the  husband  takes 
an  estate  in  fee,  and  if  he  continues 
the  estate  in  the  hands  of  the  trustee 
until  his  death  his  creditors  are  en- 
titled to  payment  out  of  the  estate. 
Morgan's  Estate,  223  Pa.  228. 

3  Fisher  v.  Taylor,  2  Rawle,  33; 
Ashhurst  v.  Given,  5  W.  &  S.  323; 
Vaux  V.  Parke,  7  Id.  19;  Brown  v. 
Williamson's  Ex'rs,  36  Pa.  338; 
Reese  v.  Livingstone,  41  Id.  113; 
Still  V.  Spear,  45  Id.  168;  Rife  v. 
Geyer,  59  Id.  395;  Shankland's  Ap- 
peal, 47  Id.  113;  Girard  Life  Ins.  Co. 
V.  Chambers,  46  Id.  485;  Overman's 
Appeal,  88  Id.  276;  Stambaugh's  Es- 
tate, 135  Id.  585;  Mehaffey's  Estate, 
139  Id.  276;  Baker's  Estate,  159  Id. 
518;  Wanner  i'.  Snyder,  177  Id.  208; 
Winthrop  Co.  v.  CHnton,  196  Id.  472. 
In  Massachusetts,  see  Huntress  v. 
Allen,  195  Mass.  226.  But  a  person 
sui  juris  cannot  settle  the  entire 
estate  on  himself,  free  from  liability 
for  debts.  Mackason's  .\ppeal,  42 
Pa.  330;  Ghormley  v.  Smith,  139  Id. 
584-593;  Hahn  v.  Hutchinson,  159 
Id.  141;  Nolan  v.  Nolan,  218  Pa.  135; 
Menken  v.  Brinkley,  94  Tenn.  721; 
Sargent  v.  Burdett,  96  Ga.  Ill;  Wil- 
liams V.  Kemper,  99  Minn.  301.  The 
rule  in  Mackason's  Appeal,  however, 
means  only  that  such  a  trust  would 
not    be    good    as    against    creditors. 


102  trusts;  their  general  nature,  [part  i. 

plished  not  only  by  a  proviso  which  expressly  exempts  the  trust 
l)roperty  from  the  debts  of  the  beneficiary,  but  also  by  a  direc- 
tion that  the  income  shall  be  disbursed  for  the  benefit  of  the 
cestui  que  trust  only  to  the  extent  which  the  trustee  may  in  his 
discretion  deem  advisable;  for  to  subject  the  income  so  be- 
(jueathed  to  execution  at  the  suit  of  a  creditor  would  end  the 
discretion  of  the  tiTivStee  and  defeat  the  intent  of  the  testator.^ 
And  this  rule  seems  also  to  exist  in  Maine,  Connecticut,  Massa- 
chusetts, Virginia,  Mississippi,  Kentucky,  Missouri,  Alabama, 
and  Maryland.-  But  where  there  is  a  limitation  over  upon  in- 
solvency, the  mere  fact  that  the  trustees  have  a  discretion  to 
apply  the  income  to  the  benefit  of  the  insolvent  will  not  affect 
the  validity  of  the  limitation  over  or  subject  the  funds  which  the 
trustees,  in  exercising  their  discretion,  may  see  fit  to  give  to  the 
beneficiary  to  the  payment  of  his  debts.  This  proposition  was 
laid  down  in  the  Supreme  Court  of  the  United  States  in  the  case 
of  Nichols  V.  Eaton,^  where  the  facts  were  as  follows:  A  testatrix 
devised  her  estate,  real  and  personal,  to  trustees,  upon  a  trust  to 
pay  the  income  to  her  children  equally  during  their  lives,  subject 
to  the  conditions — 1st,  that  in  case  of  the  alienation  of  such  in- 
come by  either  of  her  sons,  or  in  case  of  the  bankruptcy  or  in- 
solvency of  either  of  them,  or  if  from  any  other  cause  the  income 
could  no  longer  be  personally  enjoyed  by  either  of  them,  the 
trust  as  to  such  son  should  instantly  cease  and  determine,  and 
the  income  to  which  he  would  be  otherwise  entitled  should  be 
paid  to  his  wife  and  children,  if  any,  and,  if  none,  to  go  back  to 

Patrick    v.    Bingaman,    2    Supr.    Ct.  2  Murphy  v.  Delano,   95  Me.  229; 

Reps.    (Pa.)    118.      As    against    the  Mason  v.  Rhode  Island  Trust  Co.,  78 

settlor    himself    it    would    be    good;  Conn.  81;  Nickerson  r.  Van  Horn,  181 

Merriman  i'.  Munson,    134   Pa.   114.  Mass.  562;   Markham  v.   Guerrant,  4 

Ashhurst's  App.,  77  Pa.  464.  Leigh,  279;  Johnston  v.  Zane's  Trus- 

1  Keyser  v.  Mitchell,   67   Pa.   47.3.  tees,  11   Grat.  570  (but  see  Hutchin- 

It  has  recently  been  held  in  this  state  son  v.  Maxwell,  100  Vu.  1G9) ;  Leigh  v. 

that  under  a  trust  for  the  sole  and  Harrison,  69  Miss.  923;  Pope's  Ex'rs 

separate   use   of   a   married   woman,  v.  Elliott,  8  B.  Mon.  56;  Hill  v.  Mc- 

where  the  instrument  provides  that  Rae,  27  Ala.  175;  Mcllvaine  v.  Smith, 

the   income  is  to   be   paid   into  the  42   Mo.  45;   Davidson  v.  Kemper,  79 

proper  (own)  hands  of  the  cestui  que  Ky.  5;  Jarboe  v.  Hey,  122  Mo.  341; 

trufit  upon  her  own  sole  receipt,  the  and  see  Genet  v.  Beekman,  45  Barb, 

income  accrued  due,  but  still  remain-  3S2;  and  Campbell  v.  Foster,  35  N.  Y. 

iug  unpaid,  cannot  be  attached  in  the  361;   Jackson  Square   Associations, 

hands  of  the  trustee.    Hays's  Estate,  Bartlett,  95  Md.  661. 

201  Pa.  391.  391U.  S.  716. 


CH.  I.]  trusts;  their  general  nature.  103 

the  corpus  of  his  estate;  2d,  that  the  trustees  should  have  power 
in  their  discretion,  but  without  its  being  in  any  way  obHgatory 
u])on  them,  to  transfer  absoKitely  to  either  of  said  children  one- 
half  of  the  trust  fund  from  wlience  his  or  her  share  of  the  income 
under  the  preceding  trust  should  arise,  the  trusts  as  to  such  por- 
tion of  the  estate  thereupon  to  cease  and  determine;  3d,  that  in 
case  of  the  cessation  of  the  income  by  any  cause  except  deatii,  as 
before  provided  (as  by  bankruptcy,  insolvency,  or  other  cause 
preventing  either  of  them  from  personally  enjoying  his  or  her 
share  of  the  income),  the  trustees  might,  in  their  discretion,  i)ay 
to  or  apply  for  either  of  the  sons,  or  for  the  use  of  either  of  the 
sons,  or  his  wife  and  family,  so  nuich  of  the  income  as  he  woukl 
have  been  entitled  to  if  the  forfeiture  had  not  happened.  One 
of  the  sons  who  was  unmarried  and  without  children  became  a 
bankrupt,  and  on  a  bill  hied  by  the  assignee  in  bankruptcy  to 
subject  his  portion  of  the  income  to  the  claims  of  his  creditors, 
it  was  held  that  the  devise  w^as  not  void,  as  in  fraud  of  creditoi's, 
and  that  the  relief  prayed  for  would  not  be  granted — and  this, 
although  a  large  sum  of  money  ($25,000),  had  been  paid  by  the 
trustee  to  the  bankrupt  since  the  bankruptcy.  In  this  case  the 
English  authorities  were  reviewed  and  the  conclusion  reached 
that  there  was  nothing  in  them  to  forbid  such  a  trust,  and  that 
there  was  nothing  upon  principle  or  in  the  general  policy  of  the 
law  to  prevent  it  from  being  carried  out.^ 

62.  Exceptions  to  the  General  Rules  of  Devolntion  of 
Equitable  Estates. 

Certain  exceptions  to  the  rules  above  stated,  in  regard  to 
the  devolution  of  trust  estates,  and  the  powers  of  the  cestui  que 
trust,  exist  in  the  case  of  trusts  for  married  women,  and  will  be 
noticed  when  that  particular  class  of  trusts  comes  under  con- 
sideration. 

Another  exception  formerly  existed  in  England  in  relation  to 
attendant  terms,  trusts  of  which,  though  of  chattel  interests, 
followed  the  descent  of  the  inheritance  which  they  were  de- 
signed to  protect.  But  the  doctrine  of  attendant  terms  is  now 
obsolete  in  England,  and  was  never  of  any  practical  importance 
in  this  country. 

Trust  estates  also  follow  the  law  of  legal  estates  as  to  the  in- 
juries which  may  affect  them  and  the  conseciuences  of  these  in- 

^  See,  also,  Keyser  v.  Mitchell,  G7  Pa.  473. 


104 


trusts;  their  general  nature. 


[part  I, 


juries.  Thus,  although  the  terms  "seisin"  and  "disseisin"  are 
not  strictly  applicable  to  ecjuitable  estates,  a  court  of  equity  re- 
gards the  actual  receijjt  of  rents  and  profits  under  the  equitable 
title  as  equivalent  to  seisin  at  law,  and  an  adverse  taking  of  the 
rents  and  profits  as  amounting  to  an  ouster.^  Moreover,  if  such 
adverse  enjoyment  of  the  equitable  estate  continues  for  twenty 
years,  it  would,  by  analogy  to  the  statutes  of  limitations  applica- 
ble to  legal  titles,  bar  any  assertion  by  the  cestui  que  trust  of  his 
right  in  equity.^ 


1  Lewin  on  Trusts  (10th  Eng.  ed.), 

885. 

2  Merriam  i'.  Hassam,  14  Allen,  516; 
Watkins  v.  Specht,  7  Coldw.  585; 
Perry  on  Trusts,  §§855,  860,  864; 
Story's  Eq.  Jurisp.  §  975.  The  stat- 
ute will  run  from  the  time  the  trustee 
assumes  a  hostile  attitude,  but  not  if 


the  cestui  que  trust  were  in  ignorance. 
Lindsley  v.  Dodd,  5.3  N.  J.  Eq.  86; 
Drake  v.  Wild,  65  Vt.  611;  Rochefou- 
cauld V.  Boustead  [1897],  1  Ch.  196- 
208;  Soar  v.  Ashwell  [1893],  2  Q.  B. 
391 ;  Lamberton  v.  Youmans,  84  Minn. 
109;  Curtis  v.  Lakin,  36  C.  C.  A. 
226. 


CH.  II. 1 


EXPRESS   TRUSTS 


105 


CHAPTER  II. 


EXPRESS    TRUSTS  ;    AND    HEREIN    OF    VOLUNTARY    DECLARATIONS    IN 
TRUST,  OF  PRECATORY  TRUSTS,  AND  OF  POWERS  IN  TRUST. 


63.  Trusts  created  by  direct  fiduciary 

expressions ;  Trusts  averable  at 
Common  Law. 

64.  Statute  of  Frauds. 

65.  Language  by  which  a  Trust  may 

be  created. 

66.  Voluntary  dispositions  in  Trust; 

Milroy  v.  Lord;  Ex  parte  Pije. 

67.  General  result  of  the  authorities; 

Donaldson  v.  Donaldson;  Rich- 
ards V.  Delbrldge. 

68.  Voluntary   Assignments   for  the 

benefit  of  Creditors. 

69.  Meritorious  Consideration;    Ellis 

V.  Nimmo. 


70.  Donatio  mortis  causa. 

71.  Tru.sts     created     by     Precatory 

Words;  English  doctrine. 

Doctrine  on  tiiis  subject  in  the 
United  States  generally;  in 
Pennsylvania  and  Connecticut. 

What  precatory  words  will  create 
a  Trust. 

Are  such  words  prima  facie  im- 
perative? 

Certainty  of  the  object  is  an  ele- 
ment for  consideration. 

Certainty  of  the  subject. 

Powers  in  Tr\ist;  Salusbury  v. 
Denton. 


72 


73 


74 


(6. 


63.  Trusts  created  by  direct  tiduciary  expressious  ;  Trusts 
averable  at  Coiniiion  Law. 

Express  trusts,'  beiiiii'  those  which  are  created  by  the  km- 
guage  of  the  parties,  may,  it  is  obvious,  arise  either  In-  direct 
fiduciary  expressions  wlierel)y  tlie  relationship  of  trustee  :md 
ceatui  qiie  trust  is  distinctly  established,  or  b}^  expressions  of  a 
more  uncertain  and  equivocal  character  which  might  not  in  the 
opinion  of  a  layman  be  considered  as  indicating  an  intention  to 
cieate  a  trust,  but  which  have  been  construed  by  a  series  of 
judicial  decisions  to  be  effective  in  so  doing. 

Before,  liowever,  considering  the  question  as  to  what  language 


'  "If  there  is  created  in  expressed 
terms,  whether  written  or  verbal,  a 
trust,  and  a  person  is  in  terms  n«)mi- 
nated  to  be  the  trustee  of  that  trust,  a 
court  of  equity,  upon  proof  of  such 
facts,  will  not  allow  hiui  to  vouch  a 


statute  of  limitations  against  a  breach 
of  that  trust.  Such  a  trust  is  in 
equity  called  an  express  trust."  Per 
Lord  Esher,  M.  R.,  in  Soar  v.  Ashwell 
[1893],  2  Q.  B.  390-393. 


10(3  EXPRESS   TRUSTS.  [PART    I. 

is  necessary  to  create  a  trust,  it  will  be  proper  to  premise  that 
at  common  law  trusts,  both  of  real  and  personal  property,  could 
be  created  by  parol. ^  A  trust  of  realty,  like  a  use,  was  in  tech- 
nical language  "averable;''  that  is,  it  could  l)e  created  by  word 
of  mouth.-  The  better  opinion  is,  however,  that  this  is  only  true 
of  those  cases  in  which  the  legal  estate  could  be  created  by  feoff- 
ment, where  (of  course)  no  writing  was  necessary.  But  when  a 
deed  was  requisite  for  the  conveyance  of  the  legal  estate  (as  in  a 
covenant  to  stand  seised  to  uses),  there  uses  and  trusts  were  not 
averable,  but  could  be  created  only  in  the  same  manner  as  legal 
estates. •'*  In  Connecticut  it  has  been  held  that  trusts  were  not 
averable  at  common  law;  "*  but  the  weight  of  American  authority 
is  decidedly  the  other  way.^ 

64.  The  Statute  of  Frauds. 

The  Statute  of  Frauds  (29  Car.  II.,  c.  3)  changed  the  rule  in 
regard  to  real  estate,  and  enacted  (in  the  7th  section)  that  "all 
declarations  or  creations  of  trusts,  or  confidences  of  any  lands, 
tenements,  or  hereditaments,  shall  be  manifested  and  proved 
by  some  ^^•riting  signed  by  the  party  who  is  by  law  enabled  to 
declare  such  trusts,  or  ]:)y  his  last  will  in  writing;  or  else  they 
shall  be  utterly  void  and  of  none  effect."  **  An  assignment  of  a 
trust  of  realty  nuist  also  be  in  writing.''' 

This  statute  applies  to  chattels  real  as  well  as  to  freehold 
estates;*  though  not  to  mere  personal  rights  concerning  land, 
such  as  mortgages  and  charges.^    And   where   land  has  been 

1  See  Tiitt   r.  Crotzer,  13  Pa.   l.")!;  <  Dean  v.  Dean,  6  Conn.  285. 

Owens  r.  \\  illiam.s,  V.'A)  X.  C.  165.  ^  Fleming  v.  Donahoe,  5  Ohio,  257; 

2Lewin  on  Trust.s  (10th  Eng.  ed.),  Miller  r.  Thatcher,  9  Tex.  485;  Os- 

56;  Peny  oti  Trusts,  §  75;  Fordyce  v.  terman  r.  Baldwin,  6  Wall.  IIG;  Shel- 

"W'illi.s,  ;;  Bro.  C.  C.  .587.  ton   r.  Shelton,   f)  Jones  (Eq.),  292; 

^Clilhert    on    Uses,    270.      A   parol  .Alurphy  r.  Hubert,  7  Pa.  420;  And- 

agreement   made  at   the  time  of  ex-  ing  v.  Davis,  38  Miss.  574. 

ecutiiig  a  conveyance  of  real  estato  «  The  "  party  who  by  law  is  entitled 

that  tlie  grantee  shall  hold  the  prop-  to  declare  such  trust"  is  the  bene- 

erty   in   trust    for   the   grantor,   and,  licial  owner  only.     Kronheim  i'.  John- 

whea  s:)Ll,  pay  the  proceeds  to  him,  son,  7  Ch.  D.  GO ;  Tierney  t'.  Wood,  19 

the  co.iveyance   not   being  obtained  Beav.  3.'J0. 

by  fraud  or  undue  influence,  is  void  7  gee  29  ("ar.  II..  §§7,  8,  9. 

as  an  attempt  to  create   an   express  «  Skett  v.  Whitmore,  Freem.  280; 

trust  in  r.-al  estate  l)y  parol,  and  the  Riddle  r.  Emerson,  1  \evn.  KJS;  and 

land  and   the  money  fur  which  it   is  see  Hutchins  v.  Lee,  1  Atk.  447:  Bel- 

suld  belong  to  the  grantee.    Marvel  r.  lasis  v.  Compton,  2  Vern.  294. 

Marvel,  70  Neb.  498.  »  Benbow  v.  TowTisend,  1  M.  &  K. 


CH.  II.] 


EXPRESS   TRUSTS. 


107 


conveyed  on  a  parol  trust,  and  is  afterwards  converted  into 
money,  a  subsequent  parol  declaration  of  trust  will  lx>  suffi- 
cient.* 

It  is  to  be  observed  that  the  statute  does  not  reciuire  ti'usts  of 
realty  to  be  created,  but  only  to  be  manifested  and  proved  by 
writing.^  The  distinction  is  of  practical  importance,  because  a 
subsequent  written  acknowledgment  of  a  trust  will  cause  the 
interest  to  relate  back  to  the  date  of  its  original  creation,  so  as 
to  bring  it  (for  example)  within  the  operation  of  a  will  of  the 
cestui  que  trust  executed  before  the  written  acknowledgment, 
but  after  the  verbal  creation.^ 

This  statute  has  been  re-enacted  in  most  of  the  United  States; 
in  some  of  which,  however,  the  language  of  the  statute  has  been 
somewhat  varied.  Thus  in  Maine  trusts  nuist  be  ''created  and 
declared  in  writing,"  and  in  Indiana.''  In  Illinois  "declarations 
or  creations  of  trusts  must  be  manifested  and  proved"  in  wilt- 
ing.^ The  statutes  of  Vermont,  and  Massachusetts,  and  A\'is- 
consin,^  are  similar.^ 


506;  Bellasis  v.  Compton,  2  Vern.  294. 
See  Perry  on  Trusts,  §  86. 

1  Maffitt's  Adm'r  v.  Rynd,  69  Pa. 
386;  Thomas  v.  Merry,  113  Ind.  83; 
State  V.  Roudebush,  114  Id.  347. 

2  See  language  of  Chancellor  Kent 
in  Movan  v.  Hays,  1  Johns.  Ch.  342. 

"A  valid  express  trust,  involving 
real  estate,  enforceable  in  equity,  can 
be  created  by  parol,  and  such  a  trust 
is  created  by  a  parol  agreement  made 
by  a  conveyee  at  the  time  of  the  con- 
veyance of  the  land,  to  hold  the  land 
in  trust  for  the  conveyor,  to  be  con- 
veyed as  he  may  direct,  for  a  con- 
temporaneous parol  agreement,  made 
at  the  time  of  the  execution  and  de- 
livery of  a  conveyance  of  land,  ab- 
solute upon  its  face,  that  the  con- 
veyee will  hold  the  said  land  in  trust 
for  a  certain  person  is  not  within  the 
statute  of  frauds,  and  aside  from  the 
rights  of  creditors  of  the  original 
conveyor  and  innocent  purchasers 
from  the  conveyee  vests  in  the  bene- 
ficiary of  the  trust  a  valid  equi- 
table title  to  the  land  which  a  court 


of  equity  will  enforce."      Insurance 
Company  v.  Waller,  116  Tenn.  1. 

3  Ambrose  ?'.  Ambrose,  1  P.  A\'ms. 
322.  See,  also,  Forster  )•.  liule,  3 
Ves.  Jr.  696;  5  Id.  315;  Barrell  /•.  Joy, 
16  Mass.  223;  Safford  r.  Rantoul.  12 
Pick.  233,  and  Sime  r.  Howard,  4 
Nev.  483. 

*  Rev.  Stats.  (1857)  ch.  73,  §  11,  p. 
450;  see  (Jerry  v.  Stimson,  (iO  Me. 
188;  §  3391,  Burns,  1901;  Nesbitt  v. 
Stevens,  161  Ind.  519. 

5  Rev.  Stats,  of  1877,  §  9,  p.  522; 
Home  V.  Ingraham,  125  111.  19S. 

8  But  parol  trusts  are  only  void- 
able. Begole  V.  Ilazzard,  81  Wis.  274; 
also  Missouri,  see  §  3416,  R.  S.,  1899; 
Hall  V.  Small,  178  Mo.  629. 

1  Ga.  Civil  Code,  §  3153.  "All  ex- 
press trusts  must  be  created  or  de- 
clared in  writing."  Eaton  v.  Barnes, 
121  Ga.  548. 

Virginia:  "If  an  express  trust  af- 
fecting real  estate  can  be  estalilished 
by  parol  evidence  (which  is  an  njieii 
question  in  this  State)  the  declara- 
tion  must   be   unequivocal   and   ex- 


108 


EXPRESS   TRUSTS. 


[part  I. 


It  is  considered,  however,  by  a  learned  writer,  that  this  varia- 
tion of  language  does  not  produce  any  substantial  difference  in 
the  effect  of  the  statutes,  but  that  under  all  of  them  it  will  be 
sufficient  if  the  trust  is  proved  by  some  writing,  although  exe- 
cuted after  its  creation.^ 

Personal  chattels  are  not  within  the  Statute  of  Frauds;  and 
trusts  of  them  may  be  proved  by  parol. ^  Implied  trusts  are  ex- 
pressly excepted  from  the  operation  of  the  statutes  in  most  of 
the  states. 

It  is  not  essential  that  the  writing  by  which  the  trust  is  "  mani- 
fested and  proved"  should  be  in  any  particular  form.  It  may  be 
couched  in  any  language  which  is  sufficiently  expressive  of  an 
intention  to  create  a  trust.  Thus,  a  nota  bene  at  the  foot  of  a 
deed,^  or  a  mere  letter  or  memorandum  will  te  enough."*    The 


plicit,  and  established  by  clear  and 
convincing  testimony.  Testimony  of 
witnesses  as  to  verbal  admissions 
made  by  a  husband  more  than  thirty 
years  previous  to  the  time  of  their 
testifying,  and  as  to  casual  conversa- 
tions between  husband  and  wife  had 
many  years  ago,  is  not  sufficient  to 
establish  a  trust  in  favor  of  the  wife. 
The  danger  of  relying  upon  such  ev- 
idence is  enhanced  where,  as  in  this 
case,  the  testimony  of  both  husband 
and  wife,  the  principal  actors  in  the 
occurrence,  is  lost."  Garrett  ?'.  Ru- 
therford, 108  Va.  478. 

1  Perry  on  Trusts,  §  81;  and  see 
Bragg  V.  Paulk,  42  Me.  502;  Sime 
V.  Howard,  4  Nev.  482;  Kingsbury 
V.  Burnside,  58  111.  310;  Faxon  v.  Fol- 
vey,  110  Mass.  392;  Salisbury  v. 
Clarke,  61  Vt.  453;  Wolford  v.  Farn- 
ham,  44  Minn.  IGl;  Houston  v. 
F'arris,  93  Ala.  587;  Silvers  v.  Pot- 
ter, 48  N.  J.  Eq.  539;  Templeton  v. 
Brown,  86  Tenn.  50. 

2  M'Fadden  v.  Jenkyns,  1  Hare, 
451;  1  Ph.  Ch.  157;  Benbow  v.  Town- 
send,  1  M.  &  K.  506;  Hawkins  i\ 
Gardiner,  2  Sm.  &  Giff.  451 ;  Kimball 
r.  Morton,  1  Halst.  Ch.  31;  Higgen- 
bottom  V.  Pej'ton,  3  Rich.  Eq.  398; 


Kirkpatrick  v.  Davidson,  2  Kelly, 
297;  Day  v.  Roth,  18  N.  Y.  447; 
Hooper  v.  Holmes,  11  N.  J.  Eq.  122; 
Maffitt  V.  Rynd,  69  Pa.  380;  Moore  v. 
Williams,  62  Hun,  55;  In  re  Carpen- 
ter, 131  N.  Y.  86;  Skeen  v.  Marriott, 
22  Utah,  73.  See  Perry  on  Trusts, 
§  86;  Crews  v.  Crews'  Admr.,  113  Ky. 
152;  Washington's  Est.,  220  Pa.  204. 

"There  are  four  essential  elements 
of  a  valid  trust  of  personal  property: 
(1)  a  designated  beneficiary;  (2)  a 
designated  trustee,  who  must  not  be 
the  beneficiary;  (3)  a  fund  or  other 
property  sufficiently  designated  or 
identified  to  enable  title  thereto  to 
pass  to  the  trustee ;  (4)  the  actual  de- 
livery of  the  fund  or  other  property 
or  of  a  legal  assignment  thereof  to  the 
trustee  with  the  intention  of  passing 
legal  title  thereto  to  him  as  trustee." 
Brown  v.  Spohr,  180  N.  Y.  201. 

»  Ivory  r.  Burns,  56  Pa.  300. 

*  Dale  V.  Hamilton,  2  Phillips,  266: 
Forster  v.  Hale,  3  Ves.  Jr.  696;  5 
Id.  308;  Raybold  v.  Raybold,  20  Pa. 
308;  Maccubbin  v.  Cromwell,  7  Gill  & 
J.  164;  Barren  v.  Joy,  16  Mass.  221; 
Packard  v.  Putnam,  57  N.  H.  31;  De 
Laurencel  v.  De  Boom,  48  Cal.  581; 
Throop  V.  Hatch,  3  Abb.  Pr.  R.  29; 


CH.  II.] 


EXPRESS   TRUSTS. 


109 


writing,  however,  must  declare  with  sufficient  certainty  what  the 
trust  is} 

An  answer  in  chancery  admitting  the  trust  will  be  sufficient 
to  take  it  out  of  the  statute ; '  but  the  better  opinion  seems  to 
be  that  this  will  not  be  the  rule  if  the  defendant  chooses  to  in- 
sist upon  the  benefit  of  the  statute.^  If  the  answer  denies  the 
agreement  upon  which  the  trust  is  based,  it  need  not  expressly 
set  up  the  statute,  or  (in  other  words)  take  the  defence  that  the 
agreement  was  in  parol.'* 

A  trust  may  be  created  by  will;  but,  to  be  valid,  the  will  must 
be  duly  executed.  A  writing  which  purports  to  be  a  testa- 
mentary paper,  if  not  properly  executed  to  take  effect  as  a  will, 
I'annot  be  relied  upon  as  a  memorandum  to  satisfy  the  statute.^ 

And  so,  where  the  creator  of  a  trust  can  only  act  under  cer- 
tain formalities,  those  formalities  must  be  observed.  Thus,  the 
declaration  of  a  trust  respecting  realty  by  a  married  woman, 
must,  when  the  statute  requires  that  her  conveyances  shall  be 
separately  acknowledged,  be  made  out  in  some  other  mode  than 


Hutchins  v.  Van  Vechten,  140  N.  Y 
115;  Pratt  v.  Ayre,  3  Chand.  265 
Whetsler  v.  Sprague,  224  111.  461 
Starr  v.  Starr,  1  Ohio,  321;  Reid  v 
Reid,  12  Rich.  Eq.  213;  Snader  v 
Slingluff,  95  Md.  356.  Though  see 
Homer    v.    Homer,     107    Mass.    82 

1  Steere  v.  Steere,  5  Johns.  Ch.  1 
Smith  V.  Matthews,  3  D.  F.  «fe  J 
139;  Cook  v.  Barr,  44  N.  Y.  161; 
Taft  V.  Dimond,  16  R.  I.  584;  Yerkes 
V.  Perrin's  Est.,  71  Mich.  567;  Renz  v. 
Stoll,  94  Id.  377;  Salisbury  v.  Clarke, 
61  Vt.  459;  Martin  v.  Baird,  175  Pa. 
540. 

A  writing  headed  "The  Byers 
Place — J.  P.  Byers,"  and  designated 
as  "Memoranda  and  agreement," 
was  as  follows:  "The  arrangement 
with  Mr.  Byers  is  this:  All  money  in- 
vested by  him  in  the  Byers  Place  to 
be  placed  to  his  credit  and  to  bear 
interest  from  the  date  credit  is 
given  until  paid.  When  the  total 
principal  and  interest  is  paid  in  full 
then  the  residue  or  remaining  prop- 
erty to  belong  to  C.  W.  and  R.  B. 


Ranney  (Signed)  J.  P.  Byers." 
Held,  (1)  that  the  writing  was  a 
declaration  of  trust  sufficient  to  meet 
the  requirements  of  the  act  of  1856; 

(2)  that  the  designation  of  the  sub- 
ject of  the  trust  as  "Byers  Place" 
was    a    sufficient    description;    and 

(3)  that  as  the  subject-matter  was 
designated,  parol  evidence  was  ad- 
missible to  apply  the  description  to 
the  land.  Ranney  v.  Byers,  219  Pa. 
332. 

2  Maccubbin  v.  Cromwell,  7  Gill  & 
J.  164;  Cozine  v.  Graham,  2  Paige 
(Ch.),  177;  Nab  v.  Nab,  10  Mod.  404; 
Patton  V.  Chamberlain,  44  Mich.  5; 
McVay  v.  McVay,  43  N.  J.  Eq.  47. 

3  Dean  v.  Dean,  9  N.  J.  Eq.  425; 
Whiting  V.  Gould,  2  Wis.  552;  Perry 
on  Trusts,   §  85. 

*  Wolf  V.  Corby,  30  Md.  360;  On- 
tario Bank  r.  Root,  3  Paige  (Ch.), 
478;  Billingslea  v.  Ward,  33  Md.  51; 
Allen  V.  Chambers,  4  Ired.  Eq.  125. 

5  Perry  on  Trusts,  §89  to  §94; 
Lewin  on  Trusts,  chap.  V.,  sec.  3; 
Bryan  v.  Bigelow,  77  Conn.  604. 


110  EXPRESS   TRUSTS.  [PART    I. 

by  her  admission  or  acknowledgment,  orally  or  in  writing.  It 
must  be  accompanied  with  such  a  certificate  of  separate  examina- 
tion and  voluntary  acknowledgment  as  is  required  by  the  statute 
in  case  of  her  deed.^ 

65.  Languaj^e  by  which  a  trust  may  be  created. 

Having  premised  thus  much  concerning  the  instrument  which 
is  needed  for  a  valid  trust,  we  must  now  consider  what  language 
should  be  used  in  order  that  a  trust  may  be  created. 

"Three  things,"  it  has  been  said,"  "must  concur  to  raise  a 
trust,  sufficient  words  to  create  it,  a  definite  subject,  and  a  cer- 
tain or  ascertained  object;"  and  to  these  requisites  may  be 
added  another,  viz.,  that  the  terms  of  the  trust  should  be  suf- 
ficiently declared.^ 

The  precision  with  which  it  is  necessary  to  define  the  subject- 
matter,  and  the  object  of  the  trust,  will  be  noticed  when  we 
come  to  consider  powers  in  trust,  and  that  class  of  expressions 
which  are  known  as  precatory  w^ords.  Putting  these  aside  for 
the  present,  it  may  be  said  that  there  must,  in  general,  be  suffi- 
cient words  to  create  a  trust ;  but  that  no  particular  form  of  ex- 
pression is  necessary.'*  It  will  be  enough  if  there  be  a  complete 
intention,  expressed  with  sufficibnt  clearness. 

The  intention  must  ))e  a  complete  one.  Thus,  where  a  party 
at  the  time  he  purchased  a  certain  tract  of  land  executed  an 
instrument  by  which  it  was  set  forth  that  the  purchase  was  "in- 
tended" for  another,  it  was  held  that  the  mere  fact  that  the 
j)urchaser  "intended"  to  give  the  property  to  the  alleged  bene- 
ficiary could  not  have  the  effect  of  raising  a  trust. ^    A  mere  in- 

1  Graham  v.  Long,  65  Pa.  387,  per  109;  Campbell  r.  Brown,  129  Mass. 
Sharswood,  J.;  Tatge  v.  Tatge,  34  23;  and  Hellman  v.  McVVilliams,  70 
Minn.  272.  Cal.    449;    Harris    Banking    Co.    v. 

2  By  Sir  AVm.  Grant,  in  Cruwys  v.  Miller,  190  Mo.  640. 

Colman,     9     Yes.     323.       See,     also,  *  Krebs's  Estate,  184  Pa.  222. 

Knight  V.   Boughton,   11  CI.  &  Fin.  s  Hays  i'.  Quay,  68  Pa.  263.    "Con- 

513,  and  Malim  v.  Keighley,  2  Ves.  Jr.  ceding  the  existence  of  a  bona  fide  in- 

335.    A  devi.se  in  trust  which  neither  tention  to  create  the  alleged   trust, 

designates  nor  provides  for  the  se-  that  intention  was  never  in  fact  ex- 

Icction  of  a  heneiiciary  is  void  and  ecuted,  either  by  signing  the  declara- 

upon  the  death  of  the  testator  the  tion    above    quoted,    by    change    of 

heirs  are   entitled   to  an.  immediate  possession,  or  in  any  other  manner. " 

distribution    of    the    trust    property.  Girard    Trust    v.    Mellor,    Appellant, 

Filkins  v.  Severn,  127  la.  7:58.  156  Pa.  589-590.     See,  also,  Sheffield 

3  Knight  V.  Boughton,  11  Clark  &  v.  Parker,  158  Mass.  330;  Cunning- 
Fin.  513;  Pitta  v.  Weakley,  155  Mo.  ham  v.  Davenport,   147   N.   Y.  43; 


CH.  II.] 


EXPRESS   TRUSTS. 


Ill 


choate  and  executory  design  is  not  enough/  and  unless  there 
is  some  distinct  equity  (as  fraud,  for  example),  it  cannot  be  en- 
forced.' The  intention  must  be  plainly  manifested,  and  not 
derived  from  loose  and  equivocal  expressions  of  parties  made  at 
different  times  and  upon  different  occasions.^  But  any  words 
which  indicate  with  sufficient  certainty  a  purpose  to  create  a 
trust  will  be  effective  in  so  doing.^ 

It  is  not  necessary  that  the  terms  "trust  "  and  "trustee" 
should  be  used.^  There  is  no  magic  in  these  words,^  and  any 
others  which  show  that  the  donee  was  not  intended  to  take  bene- 
ficially will  affect  his  conscience  with  a  trust.' 


Sullivan  v.  Sullivan,  161  Id.  554; 
Providence  Inst,  for  Savings  v.  Car- 
penter, 18  R.  I.  287. 

1  Bayley  v.  Boulcott,  4  Russ.  345; 
Harrison  v.  McMennomy,  2  Edw.  Ch. 
251.  See,  also,  Kilpin  r.  Kilpin,  1  M. 
&  K.  520;  Willard  v.  Willard,  56  Pa. 
119;  Bellinger's  Appeal,  71  Id.  425; 
Perry  on  Trusts,  §  77;  Spivey  v.  Har- 
rell,  101  N.  C.  48;  Hamcr  v.  Sid  way, 
57  Hun,  229;  Skeen  v.  Marriott,  22 
Utah,  73. 

2  Donahoe  v.  Conrahy,  2  Jon.  & 
Lat.  694;  Wolff's  Appeal,  123  Pa.  451. 

3  Slocum  V.  Marshall,  2  Wash.  C.  C. 
398;  Steere  r.  Steere,  5  Johns.  Ch.  1; 
Mercer  v.  Stark,  1  Sm.  &  Marsh.  (Ch.) 
479;  Harris  v.  Barnett,  3  Grat.  339; 
Barkley  v.  Lane,  6  Bush  (Ky.),  587; 
Levi  V.  Evans,  18  U.  S.  App.  293-303; 
Pitts  V.  Weakley,  155  Mo.  109;  Skeen 
V.  Marriott,  22  Utah,  73. 

4  Fisher  v.  Fields,  10  Johns.  495; 
Carpenter  v.  Cushman,  105  Mass.  419; 
Norman  v.  Burnett,  25  Miss.  183;  Por- 
ter V.  The  Bank  of  Rutland,  19  Vt. 
410;  Brown  v.  Combs,  5  Dutch.  36; 
Luco  V.  De  Toro,  91  Cal.  405;  Max- 
well V.  Barringer,  110  N.  C.  76;  Mc- 
Auley's  Estate,  184  Pa.  124;  Moody 
V.  Keller,  127  Ala.  630;  Krankel's 
Ex'x  V.  Krankel,  104  Ky.  745. 

5  Sharpless  v.  Welsh,  4  Dall.  261 ; 
Sheets's  Estate,  52  Pa.  266;  Packard 
V.  Old  Col.  R.  R.,  168  Mass.  96;  Col- 
lins V.  Lewis,  60  N.  J.  Eq.  488;  Matter 


of  Griffin,  167  N.  Y.  71;  Estate  of 
Reith,  144  Cal.  314;  see  Lewin  (10th 
Eng.  ed.),  161.  Though  their  ab- 
sence is  a  circumstance  to  be  at- 
tended to,  King  V.  Denison,  1  V.  &  B. 
273.  See,  also,  Porter  v.  Bank  of  Rut- 
land, 19  Vt.  410;  Fisher  v.  Fields,  10 
Johns.  495;  Gordon  v.  Green,  10  Ga. 
534;  Norman  i\  Burnett,  25  Miss.  183. 
On  the  other  hand,  the  words  "  trust " 
and  "  trustee "  will  not  necessarily 
create  a  trust.  Freedley's  Appeal,  60 
Pa.  344;  Brown  v.  Combs,  2  Dutch.  36. 
See,  also,  Seldon's  Appeal,  31  Conn. 
548;  Eldridge  ;;.  The  See  Yup  Co.,  17 
Cal.  44;  Att.  Gen.  v.  Marrimack 
Manuf.  Co.,  14  Gray,  612;  Richard- 
son V.  Inglesby,  13  Rich.  Eq.  59. 

6  Sheets's  Estate,  52  Pa.  266. 
Their  use  does  not  necessarily  create 
a  trust;  Hart  v.  Seymour,  147  111.  609; 
Towar  v.  Hale,  46  Barb.  361;  Den  v. 
Hay,  21  N.  J.  Law,  174;  Austin  v. 
Shaw,  10  Allen,  552. 

7  Crockett  v.  Crockett,  1  Hare,  451 ; 
Bibby  v.  Thompson,  23  Beav.  646; 
Jubber  v.  Jubber,  9  Sim.  503;  Pierce 
V.  McKeehan,  3  W.  &  S.  28:];  Raikes 
IK  Ward,  1  Hare,  445;  Inderwick  v. 
Inderwick,  13  Sim.  652;  Aynesworth 
V.  Haldeman,  2  Duvall,  571;  Day  v. 
Roth,  18  N.  Y.  453;  Hirsh  r.  Auer, 
146  Id.  19;  Blackburn  v.  Blackburn, 
109  N.  C.  488;  Roche  v.-  George's 
Extr.,  93  Ky.  609;  Cathcart  v.  Nel- 
son's Admr.,  70  Vt.  317. 


112 


EXPRESS   TRUSTS. 


[part     I . 


The  declaration  of  trust  may  be  contained  in  a  different  in- 
strument from  that  by  which  the  estate  is  vested  in  the  trustee;^ 
but  the  instruments  must  be  contemporaneous,  or,  at  all  events, 
in  contemplation  at  the  same  time ;  and  if  an  absolute  convey- 
ance is  made,  no  subsequent  declaration  cap  deprive  the  grantee 
of  his  beneficial  interest.' 

As  to  the  quantity  of  the  estate  which  the  cestui  que  trust  is  to 
take,  it  is  only  necessary  that  the  intention  upon  the  subject 
should  be  clearly  expressed;  and  it  is  not  necessary  that  the 
technical  words  required  in  the  limitation  of  legal  estates  should 
be  used.  Thus,  an  ecjuitable  fee  may  be  created  without  the 
use  of  the  word  "heirs,"  and  a  fee  tail  without  the  use  of  "heirs 
of  the  body,"  ^  provided  always  that  the  intention  to  give  a  fee 
sufhciently  appears.  Where  a  trust  is  created  by  a  devise  by 
which  the  fee  is  given  to  the  trustee,  the  cestui  que  trust  will  be 
entitled  to  the  beneficial  ownership  in  fee,  without  an  express 
limitation  to  his  heirs,  Ix'cause  it  is  supposed  that  the  testator 
intended  that  the  beneficial  interest  should  exhaust  the  entire 
legal  estate.'*    But  in  a  deed  the  rule  is  otherwise.^ 

Where  technical  words  are  used,  however,  they  must  be  taken 
in  their  legal  and  technical  sense, ^  except  in  certain  cases  of 
executory  trusts,  which  have  been  already  noticed. 

66.  Volnntary  dispositions  in  trust;  Milroy  v.  Lord;  Ex 
parte  PiH'> 

It  has  been  said  that  in  order  to  create  a  valid  trust  there 


1  Inchiquin  r.  French,  1  Cox,  1 ; 
Wood  r.  Cox,  2  M.  &  Cr.  684;  Stubbs 
V.  Sargon,  2  Keen,  255;  Smith  v. 
Attersoll,  1  Russ.  266;  or  in  a  nola 
bene  at  the  foot  of  a  deed;  Ivory  ?". 
Burns,  5t)  Pa.  300. 

2  AdHnston  ?•.  Cann,  3  Atk.  145; 
Crabb  r.  Crabb,  1  M.  &  K.  511;  Kil- 
pin  V.  Kilpin,  Id.  520,  532.  See,  also, 
Briggs  V.  Penny,  3  McN.  &  Ci.  546; 
Johnson  v.  Ball,  5  De  G.  &  Sm.  85; 
Dawson  r.  Daw.son,  Cheves  Eq.  (S. 
C.)  148;  John.son  r.  Clarkson,  3  Rich. 
Eq.  305;  Wallgrave  r.  Tebb.s,  2  K.  & 
J.  313;  Tee  v.  Ferris,  Id.  357;  Rus- 
sell V.  .Jackson,  10  Hare,  204;  Lomax 
V.  Ripley,  3  Sm.  &  Giff.  48;  Brown 
V.  Brown,  12  Md.  87;  Tritt  v.  Crotzer, 


13  Pa.  451;  Ivory  r.  Burns,  56  Pa. 
303;  Bennett  v.  Fulnier,  4'»  Id.  155; 
Chapman  v.  Wilbur,  3  Or.  326;  Perry 
on  Trusts,   §  77. 

3Shep.  Touch.,  by  Preston,  106; 
Lewin  on  Trusts  (10th  Eng.  ed.),  117; 
Fisher  c.  Fields,  10  Johns.  505;  Pack- 
ard V.  Old  Colony  R.  R.,  168  Mass.  !)6. 

<  Moore  r.  Cleghorn,  10  Beav.  423; 
on  appeal,  12  Jurist,  591;  Knight  v. 
Selby,  3  Man.  &  Gran.  92;  Doe  v. 
Cafe,  7  Exch.  675;  Watkins  v.  Wes- 
ton, 32  Beav.  238;  Perry  on  Trusts, 
§337. 

5  Holliday  v.  Overton,  14  Beav. 
467;  15  Beav.  480;  Whiston's  Settle- 
ment [1894],  1  Ch.  661. 

6  Wright  V.  Pearson,  1  Eden,  125; 


CH.  II.] 


EXPRESS   TRUSTS. 


113 


must  not  be  merely  an  inchoate  intention,  but  that  the  trans- 
action must  be  complete.  This  rule,  it  must  be  remembered, 
apjjlies  more  j)articularly  to  trusts  which  are  created  b}^  volun- 
tary dispositions,  and  which  may  be  conveniently  considered  in 
this  place. 

For  a  trust  may  arise  either  out  of  a  contract  or  out  of  a  gift, 
and  the  distinction  which  it  is  desirable  to  remember  is  this; 
viz.,  that  in  trusts  which  grow  out  of  contracts,  and  which  are 
therefore  based  upon  a  consideration,  it  is  not  necessary  that 
the  intention  should  have  proceeded  to  the  same  extent  as  is 
required  in  trusts  which  are  purely  voluntary.^  And  this  is 
only  an  application  of  the  rule  which  exists  at  common  law  in 
reference  to  the  distinction  between  contracts  and  gifts,  as  the 
former  rests  in  fieri,  whereas  a  gift  can  only  be  effectual  after 
the  intention  to  make  it  has  been  followed  by  actual  delivery 
of  possession  or  some  ecjuivalent  act.  "A  true  and  proper  gift 
or  grant  is  always  accompanied  with  delivery  of  possession,  and 
takes  effect  immediately.  .  .  .  But  if  a  gift  does  not  take  effect 
by  delivery  of  immediate  possession,  it  is  not  then  properly  a 
gift,  but  a  contract."  '  The  conunon-law  rule,  therefore,  in  ref- 
erence to  the  transfer  of  legal  titles,  has  been  followed  in  equity 
as  to  the  creation  of  equitable  estates;  and  trusts  which  are 
purely  voluntary — that  is,  those  which  do  not  depend  upon  or 
grow  out  of 'a  consideration — must,  to  be  effectually  created,  be 
accompanied  by  the  delivery  of  the  subject  of  the  trust,  or  by 
some  act  so  strongly  indicative  of  the  donor's  intention  as  to  be 
tantamount  to  such  delivery.^  An  imperfect  conveyance,  which 
is  also  merely  voluntary,  will  not  be  aided  or  enforced  in  equity."* 


Glenorchy  v.  Bosville,  Cas.  t.  Talb. 
19. 

1  See  Ownes  v.  Ownes,  23  N.  J.  Eq. 
62;  Perry  on  Trusts,  §  95. 

2  2  Black.  Com.  441.  See  2  Kent's 
Com.  438.  It  will  be  remembered 
that  even  at  law  a  voluntary  instru- 
ment, although  executory  in  its  char- 
acter, will  be  supported  as  a  gift  of 
the  money,  if  it  be  under  seal,  for  the 
seal  will  import  a  consideration; 
Sherk  v.  Endress,  3  W.  &  S.  256; 
Yard  r.  Patton,  13  Pa.  285;  Mack's 
Appeal,  68  Id.  233. 

3  See  Cox  v.  Sprigg,  6  Md.  274;  Tay- 

8 


lor  V.  Staples,  8  R.  I.  170,  176;  Otis 
V.  Beckwith,  49  III.  121,  128;  Wad- 
hams  V.  Gay,  73  Id.  415;  Trough's 
"Estate,  75  Pa.  115;  Zimmerman  v. 
Streeper,  Id.  147;  Kulp  v.  March,  181 
Id.  627. 

4  Minturn  v.  Seymour,  4  Johns.  Ch. 
498;  Acker  v.  Phoenix,  4  Paige,  305; 
Dawson  v.  Dawson,  1  Dev.  Eq.  93; 
Caldwell  v.  Williams,  1  Bailey  Eq. 
175;  Crompton  v.  Vasser,  19  Ala.  259; 
Hayes  v.  Kershow,  1  Sand.  Ch. 
258;  Reed  v.  Vannorsdale,  2  Leigh, 
569;  Holland  v.  Hensley,  4  Clark,  222; 
Pringle  v.  Pringle,  59  Pa.  281;  Mat- 


114 


EXPRESS  TRUSTS. 


[part  I. 


The  settlor  must  do  all  in  his  power,  that  the  nature  of  the  prop- 
erty will  admit  of,  to  carry  out  his  intention.^  Lord  Justice 
Turner,  in  Mih'oy  v.  Lord,^  said  that  a  voluntary  settlement 
could  be  made  in  one  of  three  ways:  first,  by  direct  transfer  or 
assignment  to  the  donee ;  second,  by  assignment  to  a  trustee  ac- 
companied by  an  actual  transfer  of  the  legal  estate,  if  that  is  in 
the  settlor;  and  third,  by  a  declaration  that  the  settlor  holds  in 
trust  for  the  donee.'*  Ex  parte  Pye  "*  is  an  old  and  leading  au- 
thority upon  this  branch  of  the  law,  and  is  an  illustration  of  the 
last  of  the  three  classes  of  cases  mentioned  in  Milroy  v.  Lord. 
In  that  case  M.  wrote  a  letter  in  which  he  requested  his  attorney 
in  France  to  purchase  an  annuity  for  the  benefit  of  a  certain 
lady.  The  purchase  was  made,  but  the  annuity  was  taken  in  the 
name  of  the  writer  of  the  letter,  who  aftei-wards  sent  a  letter  of 
attorney  to  transfer  the  same  to  the  name  of  the  intended  donee. 
The  donor  died  before  the  transfer  was  made,  but  the  news  of 
his  death  did  not  reach  the  attorney  until  after  the  transfer. 
WTicther  the  transfer  was  good  according  to  the  law  of  France 
was  doubtful;  but  it  was  held  that,  without  determining  that 
question,  there  had  been  a  complete  declaration  of  tmst  by  the 
donor. 

So  in  Crawford's  Appeal,^  where  a  husband  credited  his  wife 
with  a  sum  of  money  on  his  books,  it  was  held  that  this  was  an 
effective  declaration  of  trust  in  the  wife's  favor.  And  a  deposit 
of  money  in  bank  to  the  credit  of  another  will  have  the  same 
effect.^ 


thews    V.   Hoagland,    48    N.   J.   Eq. 
455. 

1  See  Girard  Trust  Co.  v.  Mellor, 
156  Pa.  579.  An  intended  but  im- 
perfect gift  cannot  be  enforced  as 
a  trust.  Brown  v.  Crafts,  98  Me. 
40. 

2  4DeG.,F.  &  J.  263. 

3  See  the  opinion  of  Vice-Chan- 
cellor  Wood  in  Donaldson  v.  Donald- 
son, Kay,  711. 

*  18  Vesey,  140. 

5  61  Pa.  52. 

8  Conn.  River  Saving  Bk.  v.  Albee, 
34  Vt.  571;  Milliolland  r.  Whalcn,  89 
Md.  212;  Savings  Institution  r.  Tit- 
comb,  96  Me.  62;  Matter  of  Totten, 


179  N.  Y.  112.  But  see  Savings 
Bank  v.  Merriam,  88  Me.  146,  and 
Getchell  v.  Bank,  94  Id.  452;  Bath 
Savings  Institution  v.  Fogg,  101  Me. 
188;  Coolidge  v.  Knight,  194  Mass. 
546,  where  it  was  held  that  no  trust 
had  been  created;  Matter  of  George, 
23  Abb.  N.  C.  43.  See,  also.  Park- 
man  V.  Savings  Bank,  151  Mass.  218, 
and  Casteel  v.  FHnt,  112  la.  92  (where 
the  trust  was  rebutted  by  parol  evi- 
dence); Beaver  v.  Beaver,  117  N.  Y. 
421;  Scott  V.  Harbeck,  49  Hun,  292; 
Sayre  v.  Weil,  94  Ala.  466;  Hobo- 
ken  Bank  v.  Schwoon,  62  N.  J.  Eq. 
503;  Peck  v.  Scofield,  186  Mass. 
108. 


CH.  II.] 


EXPRESS   TRUSTS. 


115 


Ellison  V.  Ellison  ^  may,  also,  be  referred  to  as  a  leading  au- 
thority upon  this  subject.  "I  take  the  distinction  to  be,"  said 
Lord  Eldon  in  that  case,  "that  if  you  want  the  assistance  of  the 
court  to  constitute  you  cestui  que  trust,  and  the  instrument  is 
voluntary,  you  shall  not  have  that  assistance  for  the  purpose 
of  constituting  you  cestui  que  trust;  as  upon  a  covenant  to  trans- 
fer stock,  etc.,  if  it  rests  in  covenant,  and  is  purely  voluntary, 
this  court  will  not  execute  the  voluntary  covenant;  but  if  the 
party  has  completely  transferred  stock,  etc.,  though  it  is  vol- 
untary, yet,  the  legal  conveyance  being  effectually  made,  the 
equitable  interest  will  be  enforced  by  this  court."-  The  doc- 
trine is  the  same  as  that  which  has  been  laid  down  by  Lord  Thur- 
low  in  Colman  v.  Sarrel,^  where  it  was  held  that  when  a  party 
comes  into  equity  to  raise  an  interest  by  way  of  trust,  there 
must  be  a  valuable  or,  at  least,  a  meritorious  consideration; 
and  that  a  mere  voluntary  covenant  to  convey  would  not  be  en- 
forced. 

A\Tiere,  however,  a  consideration  exists,  the  case  is  different."* 
A  contract  then  arises  which  will  be  enforced  by  the  courts,  and 
equitable  interests  flowing  therefrom  will,  as  between  the  im- 
mediate parties,  be  as  much  protected  as  legal  rights.  Where 
the  legal  or  equitable  rights  of  third  parties  intervene,  the  rule 
may  be  varied.^ 

67.  General  Result  of  the  Authorities  ;  Donaldson  v.  Don- 
aldson /  Richards  v.  Delbridge. 

The  cases  upon  the  subject  of  voluntary  declarations  of  trusts 
have  been  quite   numerous,  and  it  is  impossible,  in  a  treatise 


1  6  Vesey,  656. 

2  6  Vesey,  662.  See,  also,  Stone  v. 
Hackett,  12  Gray,  227;  Wright  v.  Mil- 
ler, 4  Seld.  9;  Crompton  v.  Vasser, 
19  Ala.  266;  Andrews  v.  Hobson, 
23  Id.  219;  Greenfield's  Estate,  14 
Pa.  489;  Reese  v.  Ruth,  13  S. 
&  R.  434;  Delamater's  Estate,  1 
Whart.  362;  Souverbye  v.  Arden,  1 
Johns.  Ch.  240;  Bunn  v.  Winthrop, 
Id.  337;  Phipard  ?'.  Phipard,  55  Hun, 
433;  Clarke  v.  Lott,  11  111.  105; 
Vreeland  v.  Van  Horn,  17  N.  J.  Eq. 
139;  Stone  v.  King,  7  R.  I.  358;  Ray 
V.  Simmons,  11  Id.  268;  Adams  v. 
Adame,  21  Wall.   185;  Ritter's  Ap- 


peal, 59  Pa.  9;  Carhart's  .\{)peal, 
78  Id.  119;  Paul  v.  Paul,  20  Ch.  D. 
742;  Lynn  v.  Lynn,  135  111.  18;  Lewis 
V.  Curnutt,  130  la.  423;  Paine  v. 
Paine,  28  R.  I.  307. 

3  1  Ves.  Jr.  50.  See,  also,  Trough's 
Estate,  75  Pa.  115;  Appeal  of  Way- 
nesburg  College,  111  Id.  130. 

*  See  Lightner's  Appeal,  82  Pa. 
301.  See,  also,  the  language  of  C.  J. 
Gibson  in  Kisler  v.  Kisler,  2  Watts, 
325,  as  to  the  distinction  between  a 
parol  declaration  of  trust,  and  a  parol 
declaration  which  is  not  a  trust,  but 
a  contract. 

«  See  post,  Part  II.,  chap,  on  Notice. 


116  EXPRESS    TRUSTS.  [PART    I, 

like  the  present,  to  do  more  than  indicate  their  general  results, 
without  discussing  the  distinctions  established  by  particular  au- 
thorities. 

When  a  settlor  is  possessed  of  the  legal  title  to  the  subject- 
matter  of  the  settlement,  he  may  create  a  valid  trust  thereof, 
either  by  a  declaration  that  he  holds  the  pr()])erty  in  trust,  or  by 
a  transfer  of  the  legal  title  to  the  ])rojxu-ty  to  a  third  party  upon 
certain  tmsts.  In  other  words,  he  may  constitute  cither  him- 
self or  another  person  the  trustee.  If  he  makes  himself  the  trus- 
tee, no  transfer  of  the  subject-matter  is  necessary.  If  he  makes 
a  third  party  trustee,  he  must  transfer  to  him  the  subject  of  the 
trust  in  such  a  mode  as  will  be  effectual  to  pass  the  legal  title. ^ 
But  if  there  is  a  mere  intention  to  convey  the  property  upon 
trusts,  this  will  not  be  sufficient  if  the  proper  steps  are  not  taken 
for  the  purpose  of  making  a  valid  transfer  of  the  legal  title  to 
the  intended  trustee.-  Such  was  the  case  of  Milroy  v.  Lord,^ 
where  a  deed  of  assignment  of  stock,  unaccompanied,  however, 
by  a  transfer  of  the  stock,  was  held  ineffectual  to  create  a  trust. 
The  case  of  Donaldson  v.  Donaldson  ^  may  be  referred  to  as  an 
authority  upon  the  creation  of  voluntary  trusts  by  a  declaration 
that  the  settlor  thereby  constitutes  himself  the  trustee,  in  which 
case  no  assignment  of  the  legal  title  is  required." 

1  Dickerson's  Appeal,  115  Pa.  198,      See,  however,  Hiintly  v.  Huntly,  8 
citing  the  text;  Smith's  Estate,  144       Ired.  Eq.  250. 

Id.  42S;  Gilmor's  Estate,  158  Id.  193;  *  Kay,  711.  See,  also,  Vandenberg 
Eshbach's  Estate,  197  Id.  157;  Mc-  r.  Palmer,  4  K.  &  J.  204;  Harris 
Cartney  v.  Ridgway,  160  111.  129-  Banking  Co.  r.  Miller,  190  Mo.  640, 
156;  Nanney  v.  Morgan,  37  Ch.  D.  and  Atkins  v.  Atkins,  70  Vt.  565. 
352.  See  In  re  Richards,  36  Id.  541,  A  voluntary  settlement  may  be  good, 
— a  case  where  the  donor  gave  her  although  the  grantor  retain  the  in- 
own  promissory  note  in  favor  of  the  strument.  The  rule  is,  that  where 
donee  to  a  third  party,  to  be  handed  such  a  settlement  is  fairly  made,  the 
to  the  donee  on  the  donor's  death.  mere   fact   that  the   grantor  retains 

2  Lloyd  p.  Brooks,  34  Md.  33;  Swan  possession  of  the  deed,  unaccom- 
;;.  Prick,  Id.  143;  Flanders  r.  Blandy,  panied  by  other  circumstances,  will 
45  Ohio,  108.  not  affect  the  validity  of  the  settlc- 

34  De  G.,  F.  &  J.  264.  See,  also,  ment.  Souverbye  v.  Arden,  1  Johns. 
Jones  V.  Lock,  35  L.  J.  Ch.  117;  11  Ch.  256;  Clavering  r.  Clavering,  2 
Jur.  X.  s.  913;  L.  R.  1  Ch.  28;  For-  Vern.  473;  7  Bro.  P.  C.  400;  Bough- 
rest  V.  Forrest,  34  L.  J.  Cli.  '428;  ton  v.  Boughton,  1  Alk.  625;  John- 
Scales  v.  Maude,  6  De  G.,  M.  &G.  43;  son  V.  Smith,  1  Ve.s.  314;  Bunn  v. 
Henderson  v.  Henderson,  21  Mo.  379;  Winthrop,  1  Johns.  Ch.  329;  Adams 
Gilchrist  r.  Stevenson,  9  Barb.  9,  v.  Adams,  21  Wall.  185. 
and  Cressman's  Appeal,  42  Fa.  147.  *  Culbertson  v.  Witbeck,  127  U.  S.. 


CH.  II.] 


EXPRESS   TRUSTS. 


117 


It  may  be  observed  that,  according  to  some  English  authori- 
ties, an  assignment  which  is  ineffectual  to  pass  the  legal  title 
may  yet  take  effect  as  a  declaration  of  trust;  so  that  the  result 
of  the  abortive  attempt  of  the  assignor  to  convey  the  legal  title 
would  be,  under  those  authorities,  to  constitute  him  a  trustee 
of  that  title  for  the  party  designed  to  be  benefited.'  But  these 
decisions  have  not  been  approved  in  later  cases,^  and  the  true 
doctrine  would  seem  to  be  laid  down  in  Milroy  v.  Lord,  as  stated 
above. 

Where  a  settlor  is  not  possessed  of  the  legal  present  title,  but 
has  only  an  equitable  or  reversionary  interest  in  the  subject,  a 
trust  may  be  created  either  by  a  declaration  that  the  settlor 
holds  in  trust,  or  by  an  assignment  upon  trusts.^  The  first  of 
these  methods  stands  upon  the  same  grounds  as  declarations  of 


326;  Leeper  v.  Taylor,  111  Mo.  312 
Tyler  v.  Tyler,  25  111.  App.  333 
Janes  v.  Falk,  50  N.  J.  Eq.  468 
Krankel's  Ex'x  v.  Krankel,  104 
Ky.  745;  Collins  v.  Lewis,  60  N. 
J.  Eq.  488,  and  Collins  v.  Steuart, 
58  Id.  392.  If  a  settler  designs  to 
effect  a  valid  settlement  in  a  cer- 
tain mode,  but  the  settlement  fails 
to  take  effect  by  reason  of  an  incom- 
plete disposition,  it  cannot  take  effect 
in  another  mode  not  intended  by  the 
settler.  Milroy  v.  Lord,  8  Jur.  n.  s. 
806;  Phipard  v.  Phipard,  55  Hun, 
433;  Jones  v.  Byland^  23  Wkly.  Law 
Bui.  151. 

1  Richardson  r.  Richardson,  L.  R.  3 
Eq.  692;  Morgan  v.  Malleson,  10  Id. 
475.  See,  also,  Huntly  v.  Huntly,  8 
Ired.  Eq.  250;  Bond  v.  Bunting,  78 
Pa.  210,  and  Bank  v.  Holland,  99 
Va.  495. 

2  Warriner  v.  Rogers,  L.  R.  16  Eq. 
340;  Richards  v.  Delbridge,  18  Id.  11 ; 
Moore  v.  Moore,  Id.  474;  Heartley  v. 
Nicholson,  19  Id.  233;  In  re  Breton's 
Estate,  17  Ch.  D.  420;  Wadd  i-.  Hazle- 
ton,  137  N.  Y.  215;  Pollock  on  Con- 
tracts, 195,  196  (7th  Eng.  ed.);  Elli- 
son V.  Ellison,  1  Lead.  ("as.  Eq.  262 
(4th  Eng.  ed.).  If  the  settlement  is 
made  in  such  a  ■  form  as  to  be  sul  >- 


stantially  a  testamentary  disposition, 
it  will  not  be  treated  as  an  alisolute 
conveyance  in  trust,  but  will  be  rev- 
ocable   during    the    lifetime    of    the 
settlor.    Turner  v.  Scott,  51  Pa.  126; 
Frederick's  Appeal,  52  Id.  338;  Rick's 
App.,  105  Id.  528;  Chestnut  St.  Nat. 
Bk.  V.  Fidelity  Ins.  Co.,  186  Id.  339; 
Sturgeon  v.  Stevens,  Id.  363.    And  in 
People's  Savings  Bank  v.  Webb,  21  R. 
I.  218,  it  was  held  that  the  alleged 
settlor  was  a  competent  witness  to 
prove  that  there  was  no  intention  to 
create  a  trust — this  being  a  case  of  a 
deposit  in  a  bank  in  the  name  of  a 
father  as  trustee  for  the  son.    But  an 
absolute  deed   is  not   rendered   rev- 
ocable by  the  mere  fact  that  posses- 
sion and  control  are  reserved  to  the 
grantor  during  his  life,  or  because  it 
incorporates  a  will.     See  Dawson  v. 
Dawson,   Rice's  Eq.   260;   Robej^  v. 
Hannon,  6  Gill,  464;  Mayor  of  Balti- 
more V.  Williams,  6  Md.  235;  Craven 
V.    Winter,   38    la.   479.      See,    also, 
Rynd  v.  Baker,  193   Pa.  491,  where 
Frederick's    Appeal   and    the    other 
cases  (cited  supra)  are  distinguished. 
Clay  V.  Laj-ton,  134  Mich.  317. 

3  Collinson  v.  Patrick,  2  Keen,  123; 
Tierney  v.  Wood,  19  Beav.  330. 


118 


EXPRESS  TRUSTS, 


[part  I. 


trust  of  property  of  which  the  legal  title  is  in  the  settlor.  An 
assignment,  however,  of  an  equitable  interest  upon  a  voluntary 
trust  differs  from  a  like  assignment  of  a  purely  legal  interest,  in 
that  no  further  formalities  are  necessary  in  order  to  complete 
the  transaction,  as,  the  legal  title  not  being  in  the  assignor,  he 
can,  of  course,  take  no  steps  to  complete  its  transfer.  A  valid 
voluntary  tmst  of  an  equitable  or  reversionary  interest  may, 
therefore,  be  created  by  a  simple  assignment.^  In  such  a  case, 
however,  the  instnmnent  must  be  an  assignment;  in  other  words, 
it  must  purport  to  give  the  thing  itself.  Consequently,  where  the 
document  did  not  profess  to  be  a  transfer  of  the  reversionary  in- 
terest of  the  settlor  in  certain  stock,  but  only  to  create  a  charge 
upon  the  same,  the  gift  failed.' 

It  was  at  one  time  supposed  that,  in  the  assignments  of  equi- 
table interests,  notice  to  the  trustees  was  necessary.^  But  this 
does  not  now  seem  to  be  requisite ;  ■*  for,  if  the  assignment  is  a 
complete  one,  within  the  principle  of  Kekewich  v.  Manning,  no 
notice  is  necessary.^ 

It  sometimes  happens  that  the  voluntary  settlor  himself  seeks 
the  aid  of  a  court  of  equity  to  have  the  settlement  revoked ;  and 
the  question  has  then  arisen  whether  in  such  settlements  powers 
of  revocation  ought  not  to  be  inserted,  and  how  far  a  voluntary 
irrevocable  settlement,  in  the  absence  of  any  motive  for  an  irrev- 
ocable gift,  can  be  sustained.  There  has  been  some  fluctuation 
of  authority  upon  this  point ;  but  the  true  rule  seems  to  be  that 
the  absence  of  a  power  of  revocation  is  nothing  more  than  a  cir- 
cumstance to  be  taken  into  account,  and  is  of  more  or  less  weight 
according  to  the  other  circumstances  of  the  case.^    Where  the 


1  See  Kekewich  v.  Manning.  1 
De  G.,  M.  &  G.  176,  where  the  conflict 
of  authority  between  Sloan  v.  Cad- 
ogan,  Sug.  V.  &  P.  App.  26,  and  For- 
tescue  V.  Barnett,  3  My.  &  K.  36,  on 
the  one  hand,  and  Edwards  v.  Jones, 
1  My.  &  Cr.  226,  and  Meek  v.  Kettle- 
well,  1  Hare,  464;  1  Phill.  ("hanc.  Rep. 
342,  on  the  other,  was  settled  in  favor 
of  the  former  class  of  cases.  See, 
also,  Huggin's  Est.,  204  Pa.  167;  Otis 
V.  Beckwith,  49  111.  121.  The  decision 
in  Meek  v.  Kettlewell,  1  Hare,  464;  1 
Phill.  Chanc.  Rep.  342,  that  the  vol- 


untary assignment  of  an  expectancy, 
even  under  seal,  will  not  be  enforced 
by  a  court  of  equity,  has  not  been 
overruled  by  Kekewich  v.  Manning; 
In  re  Ellenborough,  Towry  Law  v. 
Burne  [1903],  1  Ch.  697,  and  this 
view  seems  to  be  taken  in  Lennig's 
Appeal,  182  Pa.  485. 

2  In  re  Earl  of  Lucan,  45  Ch.  D.  470. 

3  Meek  v.  Kettlewell,  id  snp. 

4  Way's  Trusts,  2  DeG.  J.  &  Sm. 
365. 

5  In  re  Patrick  [1891],  1  Ch.  82. 
8  Valter  v.  Blavka,  195  III.  610. 


CH.  II.]  EXPRESS   TRUSTS.  119 

intent  to  make  an  irrevocable  gift  is  perfectly  apparent,^  or  where 
even  in  the  absence  of  such  a  clear  intent,  a  sufficient  motive 
(such  as  protection  against  the  grantor's  own  extravagance,  or 
the  like)  for  making  such  a  gift  exists,  the  settlement  cannot 
be  disturbed.^  But  where  the  deliberate  intent  does  not  appear, 
and  no  motive  exists,  the  absence  of  a  power  of  revocation  is 
-prima  facie  evidence  of  a  mistake.''  It  need  scarcely  be  added 
that  the  mere  reservation  of  a  right  of  revocation  is  not  incon- 
sistent with  a  declaration  of  trust .^ 

68.  Voluntary  Assignments  for  the  benefit  of  Creditors. 

Voluntary  assignments  to  trustees  for  the  benefit  of  creditors 
have  been  held  to  constitute  an  exception  to  the  general  rules 
by  which  the  creation  of  voluntary  trusts  is  governed ;  inasmuch 
as,  after  such  an  assignment,  but  before  it  is  communicated  to 
the  creditors,  it  is  considered  revocable  at  the  option  of  the 
grantor.^  It  was,  indeed,  said  by  Sir  L.  Shadwell,  \ .  C,  in  Gar- 
rard V.  Lord  Lauderdale,*^  that  such  a  trust  was  revocable  by 
the  assignor  even  after  it  had  been  communicated  to  the  cred- 
itors; but  this  doctrine  has  not  met  the  approval  of  subsequent 


1  See  remarks  of  Lopes,  L.  J.,  in  135  Id.  119;  Doran  v.  McConlogue, 
Tucker  v.  Bennett,  38  Ch.  D.  17  and  150  Id.  115;  Toker  v.  Toker,  3  D.  J. 
18.  &  S.  487.    See,  also,  Villers  v.  Beau- 

2  Merrimanv.  Munson,  1.34  Pa.  114;  mont,  1  Vern.  100;  Naldred  v.  Gil- 
Reidy  V.  Small,  154  Id.  505;  Edwards  ham,  1  P.  Wms.  577;  Huguenin  v. 
V.  Edwards,  170  Id.  212;  Stockett  v.  Baseley,  14  Ves.  .300;  Petre  v.  Es- 
Ryan,  176  Id.  71;  Neal  v.  Black,  177  pinasse,  2  M.  &  K.  496;  Bill  r.  Cure- 
Id.  83;  Wilson  v.  Anderson,  186  Id.  ton,  Id.  503;  Hastings  v.  Orde,  11 
531;  Rynd  v.  Baker,  193  Id.  486;  Sim.  205;  Phillips  v.  Mullings,  L.  R. 
Carney  v.  Carney,  196  Id.  34;  Potter  7  Ch.  244;  Cooke  v.  Lamotte,  15 
V.  Fidelity,  Ins.  Trust,  etc.,  CJo.  (No.  Beav.  234;  Wollaston  v.  Tribe,  L.  R. 
1),  199  Id.  360,  305;  Kraft  v.  Neuffer,  9  Eq.  44;  Hellman  v.  McWilliams,  70 
202  Id.  558.  See,  also,  Ford  v.  Ford,  Cal.  149;  In  re  Thurston,  154  Mass. 
193  Pa.  530,  for  a  case  in  which  a  de-  596.  But  see  Sargent  r.  Baldwin, 
cree  was  entered  modifying  the  ab-  60  Vt.  17;  Howard  v.  Howard,  Id. 
solute  character  of  the  deed  of  gift.  362;  Love  r.  Love,  17  Haw.  207; 
Kellett  V.  Sumner,  15  Haw.  76;  Anderson  r.  Kemper,  116  Ky.  339. 
Crumlish  v.  Security  Trust  Co.,  8  *  Lines  v.  Lines,  142  Pa.  149; 
Del.  Ch.  .395;  Dayton  v.  Stewart,  99  Lewis  r.  Cumutt,  130  la.  423; 
Md.643;Carrollr.  Smith,  99  Md.  653.  Witherington  v.  Herring,   140  X.  C. 

3  See  Hall  v.  Hall,  L.  R.  8  Ch.  430;  495. 

Garnsey  v.  Mundy,  24  N.  J.  Eq.  243;  5  Walwyn  v.  Coutts,  3  Mer.  707;  3 

Russell's  Appeal,  75  Pa.  269;  Miskey's  Sim.  14. 

Appeal.  107  Id.  628;  Bristor  v.  Tasker,  e  3  Sim.  1. 


120  EXPRESS   TRUSTS.  [PART   I. 

decisions,  and  cannot  be  considered  sound. ^  The  doctrine  in 
Walwyn  v.  Coiitts,  when  property  considered,  appears  to  be 
based  upon  tlie  ground  that  in  such  cases  the  assignee  for  the 
benefit  of  creditors  is  not  strictly  a  trustee,  but  a  mere  agent  of 
the  debtor;  and  that  if  the  true  relation  of  the  parties  is  that  of 
principal  and  agent,  the  ordinary  rule  in  such  cases,  viz.,  that 
the  authority  of  the  agent  is  revocable  until  acted  upon,  must 
apply.^  The  English  rule  would  now  seem  to  be  that  it  is  a  ques- 
tion of  intention;  and  that  where  the  contents  of  the  deed  and 
the  surrounding  circumstances,  as  recited  in  it,  show  an  inten- 
tion to  create  a  trust,  the  rule  in  Garrard  v.  Lord  Lauderdale 
does  not  apply.^  In  America  the  mle  in  Walwyn  v.  Coutts,  and 
particularly  the  dictum  in  Garrard  r.  Lord  Lauderdale,  have  not 
been  approved.  The  assent  of  the  creditor  is  presumed  to  be 
given  to  a  tmst  created  for  his  benefit,  and  after  such  assent 
the  trust  is  irrevocable  by  the  grantor.'* 

Even  in  England,  if  a  creditor  is  created  a  trustee,  and  the  fact 
of  the  execution  of  the  deed  is  communicated  to  him,  the  trust 
will  thenceforward  be  irrevocable.'^ 

If  the  trust  for  payment  of  debts  is  to  take  effect  after  the 
death  of  the  assignor,  an  element  of  bounty  is  introduced  which 
will  take  the  case  out  of  the  ruling  in  Walwvn  v.  Coutts.*^ 


^to 


1  Acton  V.  Woodgate,  2  M.  &  K.  463;  Weir  r.  Tannehill,  2  Yerg.  57; 
495;  Harland  v.  Binks,  15  Q.  B.  713.  McKinney  v.  Rhoads,  5  Watts,  343; 
See  Johns  v.  James,  8  Ch.  D.  744.  Read  v.  Robinson,  6  W.  &  S.  329;  1 

2  See  Bill  v.  Cureton,  2  M.  &  K.  511;  Lead.  Cas.  Eq.  327;  Perry  on  Trusts, 
and  Lord  Cranworth  in  Synnot  v.  §  593.  But  the  presumption  of  the 
Simpson,  5  H.  L.  Cas.  133,  134.  creditor's  assent  may  be  rebutted  by 

3  See  the  remarks  of  Vaughan  Wil-  conduct.  CJibson  i\  Rees,  50  111. 
liam.s,  J.,  in  New  v.  Hunting  [1897],  1  383. 

Q.  B.  607,  615-616.    In  this  case  the  5  Siggers  v.  Evans,  32  Eng.  L.  & 

instrument    was   executed    to    make  Eq.  139. 

good  losses  consequent  upon  breaches  «  Synnot  v.  Simpson,  5  H.  L.  Cas. 
of  trust,  and  it  was  held  irrevocable.  141;  though  see  the  remarks  of  Lord 
*  Tennant  v.  Stoney,  1  Rich.  Eq.  St.  Leonards  in  his  dissenting  opin- 
223;  England  ?;.  Reynolds,  38  Ala.  ion,  p.  152.  In  this  connection  it 
370;  Moses  v.  Murgatroyd,  1  Johns.  may  be  noted  that  the  declaration  of 
Ch.  R.  119;  Shepard  r-.  McEvers,  4  Id  a  dividend  by  a  corporation  does  not 
136;  NicoU  v.  Mumford,  Itl.  523;  create  an  irrevocable  trust;  but  such 
Ward  V.  Lewis,  4  I'ick.  518;  New  declaration  may  be  rescinded  at  any 
England  Bank  r.  Lewis,  8  Id.  113;  time  before  the  (iate  at  which  the 
Pingree  v.  Comstock,  18  Id.  46;  Fel-  dividend  is  payable.  Ford  r.  East- 
lows  V.  Greenleaf,  43  N.  H.  421;  hampton  Rubber  Thread  Co.,  158 
Ingram  v.  Kirkpatrick,   6  Ired.  Ecj.  Mass.  84. 


CH.  II.] 


EXPRESS   TRUSTS. 


121 


69.  Meritorious  Considerjifion  :  Elli^  \.  Nlmmo. 

Before  leaving  the  suljject  of  the  creation  of  trusts  by  a  volun- 
tary disposition,  it  will  be  desirable  to  say  a  few  woi'ds  upon  the 
question  as  to  whether  the  meritorious  consideration  of  blood 
is  to  be  placed  upon  the  same  footing  as  one  whicli  is  purely 
voluntary,  so  far  as  regards  the  disposition  of  courts  of  equity 
to  enforce  any  right  or  supposed  right  founded  thereon. 

It  was  decided  by  Sugden,  when  Lord  Chancellor  of  Ireland, 
that  the  meritorious  consideration  of  blood  was  sufficient  to  set 
the  court  in  motion  for  the  purpose  of  enforcing  an  executory 
trust. ^  But  this  decision  was  not  followed  in  England;  and  the 
doctrine  must  be  considered  as  settled  the  other  way,  so  far  as 
that  countr}^  is  concerned. - 

In  the  United  States  the  authorities  are  not  altogether  har- 
monious. The  English  rule  has  been  followed  in  Pennsylvania,^ 
New  York,  and  New  Jersey.'*  In  South  Carolina  it  is  said  that 
a  voluntary  declaration  will  l)e  sutlicient  if  under  seal.^  But  the 
general  tendency  of  the  American  authorities  is  the  other  way.^ 

70.  Donatio  Mortis  Cjiiisa, 

In  connection  with  the  subject  of  voluntary  declarations  in 
trust  it  seems  proper  to  notice  gifts  mortis  causa.  A  gift  may, 
it  is  plain,  be  either  absolute  or  conditional;  and  this  distinc- 
tion may  exist  as  well  in  gifts  which  take  effect  by  means  of 
voluntary  declarations  in  trust  as  in  those  where  the  legal  title 
passes.  A  well-recognized  class  of  conditional  gifts  is  that  of 
donationes  mortis  causa;  and  the  (juestion  naturally  arises,  ^Mlat 
are  the  rules  which  are  to  be  applied  when  a  gift  of  this  sort  is 
made  in  such  a  way  that  the  legal  title  does  not  pass,  but  the 


1  Ellis  V.  Nimmo,  LI.  &  Goold,  33;}. 

2  See  Holloway  v.  Headington,  S 
Sim.  324;  Jefi'erys  i\  Jefferys,  1  Cr.  & 
Ph.  138;  Dillon  v.  Coppin,  My.  &  Cr. 
047.  In-  Moore  v.  Crofton,  3  Jones  & 
Lat.  442,  Sir  E.  Sugden  was  com- 
pelled to  abandon  the  position  he  had 
taken  in  Ellis  r.  Nimmo. 

3  Kennedy  v.  Ware,  1  Pa.  445; 
Campbell's  Estate,  7  Id.  100;  though 
see  Dennison  v.  Goehring,  Id.  175, 
and  Bond  r.  Bunting,  7S  Id.  210. 

*  Matter  of  James,  146  N.  Y.  78; 


Landon    v.    Hutton,    50    N.    J.    Eq. 
.500. 

5  Caldwell  v.  Williams,  1  Bailey  Eq 
175.    To  the  same  effect  is  the  Mis- 
souri case  of  Leeper  v.  Taylor,   1 1 1 
Mo.  312. 

BMcIntire  v.  Hughes,  4  Bibb,  186; 
Mahan  v.  Mahan,  7  B.  Mon.  579; 
Bright  )•.  Bright,  8  Id.  197.  Perry  on 
Trusts,  §  109.  See  in  this  connec- 
tion. Waterman  v.  Morgan,  114  Ind. 
237;  McHugh  v.  O'Connor,  91  Ala. 
243. 


122 


EXPRESS   TRUSTS, 


[part  I. 


equitable  title  may?  A  satisfactory  answer  to  this  question 
may  lx>  found  by  referring  to  a  modern  English  decision. 

A  gift  mortis  causa  is  one  made  in  expectation  of  death; 
when  a  person  gives  upon  condition  that,  if  any  fatality  happen 
to  him,  the  receiver  shall  keep  the  article;  but  that  if  the  donor 
should  survive,  or  if  he  should  change  his  mind,  or  if  the  donee 
should  die  first,  then  the  donor  shall  have  it  back  again. ^  There 
are  three  essentials  to  the  donation,  viz.,  (1)  the  gift  must  be 
with  a  view  to  the  donor's  death;  (2)  there  must  be  an  express 
or  implied  intention  that  the  gift  should  only  take  effect  on  the 
donor's  decease  by  his  existing  disorder;  and  (3)  there  must  be 
a  delivery  of  the  subject-matter  of  the  donation  to  the  donee, 
or  to  some  one  on  his  behalf.' 

Now,  this  conditional  gift  may  be  made  not  only  by  a  trans- 
fer of  the  legal  title  to  the  subject,  but  by  the  creation  of  an 
equitable  title  in  the  donee  through  the  medium  of  a  voluntary 
declaration  of  trust;  for  it  is  well  settled  that  there  may  be  a 
valid  gift  of  a  chose  in  action  (for  example),  although  there  has 
been  no  such  transfer  as  would  pass  the  title  at  law,  if  there 
has  been  that  done  which  amounts  to  a  declaration  of  trust  in 
equity.  Thus  in  the  case,  just  cited,  of  Austin  v.  Mead  {In  re 
Mead)  ^  it  appeared  that  Mead  had  in  his  possession  two  bills 
of  exchange,  payable  to  himself  or  order,  and  that  two  days 
before  his  death  he  had  handed  them,  unindorsed,  to  his  wife. 
It  was  held  that  this  gift  was  good.    There  was,  it  will  be  ob- 


1  This  is  a  translation  of  the  defini- 
tion given  by  Justinian,  and  is  taken 
from  the  note  to  In  re  Mead,  Austin 
V.  Mead,  in  Brett's  Leading  C'ases  in 
Equity,  124  (American  ed.  212).  See 
also  Thomas's  Admtr.  v.  Lewis,  89 
Va.  1. 

^  Brett's  Leading  Cases  in  Equity, 
nbi  suj)rn.  The  requirement  as  to 
delivery  is  satisfied  if  there  has  been 
an  antecedent  delivery  alio  intuitu: 
in  other  words,  the  intent  and  the  de- 
livery need  not  be  contemporaneous. 
Cain  V.  Moon  [1S9G],  2  Q.  B.  283. 
Where  one  in  view  of  impending  dis- 
solution clearly  and  intelligently 
manifests  an  intention  to  make  a  pres- 
ent gift  of  personal  property  to  an- 
other, and  in  consummation  of  his  in- 


tention makes  such  a  delivery  to  a 
third  person  for  the  use  of  the  in- 
tended donee  as  he  is  then  capable 
of  making,  considering  the  character 
and  situation  of  the  property,  the 
person  to  whom  the  delivery  is  thus 
made  will  be  presumed,  in  the  absence 
of  countervailing  circumstances,  to 
take  the  property  as  the  trustee  of 
the  intended  donee,  and  not  as  agent 
of  donor.  Johnson  v.  CoUey  and 
others,  101  Va.,  page  414;  Claytor  v. 
Pierson,  55  W.  Va.  167. 

3  15  Ch.  D.  651.  See  also  Clement 
V.  Cheesman,  27  Ch.  D.  631 ;  Debinson 
V.  Emmons,  158  Mass.  592;  Larrabee 
V.  Hascall,  88  Me.  511;  Leyson  v. 
Davis,  17  Mont.  220;  Funston  v. 
Twining,  202  Pa.  88,  91. 


CH.  II.] 


EXPRESS   TRUSTS. 


123 


served,  no  transfer  of  the  legal  title  to  the  bills;  but  there  was 
language  coupled  with  conduct,  viz.,  the  delivery  of  the  bills, 
which  was  equivalent  to. a  declaration  that  the  donor  was  a 
trustee  for  the  donee,  and  a  trust  enforceable  against  the  per- 
sonal representatives  of  the  donor  was  created.  Whether  or 
not  such  a  trust  will  arise  in  any  given  case  will  depend,  it  is 
believed,  upon  the  rules  heretofore  stated. 

On  the  other  hand,  where  the  transaction  simply  amounts  to 
a  conditional  and  voluntary  'promise,  it  cannot  be  sustained  as  a 
gift  mortis  causa.  Therefore,  where  the  donor  hands  his  own 
cheque  or  note  to  the  donee,  which  cheque  or  note  is  not  payable 
during  the  donor's  life,  it  cannot  be  enforced  against  the  execu- 
tor, for  it  is  simply  a  promise  without  consideration — nothing 
more.  In  the  case  already  referred  to,  the  decedent  had  handed 
his  wife,  in  addition  to  the  two  bills,  his  own  cheque  for  £500. 
It  was  held  that  there  was  no  gift  of  the  money. ^ 

It  may  be  added  that  courts  of  equity  maintain  a  concurrent 
jurisdiction  in  all  cases  of  such  donations  where  the  remedy  at 
law  is  not  adequate  or  complete.  But  in  such  cases  the  juris- 
diction stands  on  general  grounds,  and  not  upon  any  notion 
that  a  donatio  mortis  causa  is  from  its  own  nature  properly  cog- 
nizable therein.-  Of  course,  where  the  legal  title  passes,  no  resort 
to  the  doctrine  of  voluntary  declaration  of  trusts  is  necessary."' 

7 1 .  Trusts  created  by  Precatory  Words  :  English  doctrine. 

It  has  been  seen,  already,  that  no  particular  form  of  lan- 
guage is  necessary  to  create  a  trust."*  Certain  words,  it  is  true, 
are  considered  apt  words  for  that  purpose,  and  are  generally 
used  in  all  carefully  prepared  instruments  by  which  a  disposi- 
tion of  property,  either  inter  vivos  or  after  death,  is  effected; 
but,  nevertheless,  if  the  expressions  used  sufficiently  indicate  an 


1  Austin  V.  Mead,  15  Ch.  D.  651. 
See,  also,  Matter  of  James,  146  N.  Y. 
78;  Hemphill's  Estate,  180  Pa.  87- 
92,  and  Pullen  v.  Placer  Coimty 
Bank,  1.38  Cal.  169. 

2  Story's  Eq.  Jurisp.  §  666.  As  to 
the  equitable  remedy  by  Adminis- 
tration Suits,  where  these  gifts  are 
sometimes  enforced,  see  post,  Part 
III,  Chap.  VI. 

3  Upon    the    general    subject    see 


Ward  V.  Turner,  1  Lead.  Cas.  Eq. 
905,  and  notes;  Yancey  v.  Field,  85 
Va.  756;  Flanders  v.  Blandy,  45  Ohio, 
108;  Hogan  v.  Sulhvan,  114  la.  456; 
Basket  v.  Hassell,  107  U.  S.  602; 
Walsh's  Appeal,  122  Pa.  187;  Funs- 
ton  V.  Twining,  202  Id.  88,  92;  In  re 
Andrews  [1902],  2  Ch.  394;  3  Pome- 
roy'sEq.  §  1146. 

*  Witherington     v.     Herring,     140 
N.  C.  495. 


124  EXPRESS  TRUSTS.  [PART    I. 

intention  to  create  a  trust,  they  will  be  construed  to  have  that 
effect,  although  the  technical  words  most  proper  to  accomi)lish 
the  object  in  view  have  not  Ix^en  eini)loyed. 

This  is  especially  so  in  the  case  of  wills.  The  intention  of 
the  testator  has  always  been  regarded  as  the  pole  star  by  which 
any  construction  of  the  testamentary  instrument  is  to  be  guided. 
To  ascertain  that  intention  is  the  aim  of  all  well-directed  at- 
tempts at  interpretation.  Whenever,  therefore,  it  appears  from 
the  language  of  the  will  that  it  was  the  intention  of  the  testator 
to  create  a  trust,  the  courts  will  give  effect  to  that  intention,  in 
whatever  words  it  may  be  expressed. 

Where  the  testator's  intention  to  create  a  trust  is  declared  in 
express  language  there  can  be  no  difficulty.  If,  for  example, 
there  is  an  alisolute  gift  to  A.  B.,  followed  by  a  declaration 
that  the  subject  of  the  gift  is  to  l^e  held  in  trust  for  C.  D.,  the 
absolute  nature  of  the  first  gift  will,  as  a  matter  of  course,  not 
prevent  the  trust  which  is  created  by  the  subsequent  language 
from  attaching.  In  such  a  case  the  interpretation  of  the  will 
is  plain.    There  is  an  express  trust. 

But  let  it  be  supposed  that  there  is  a  gift  to  A.,  followed,  rxOt 
by  language  of  a  direct  and  imperative  character  that  the  be- 
quest or  devise  should  l)e  for  the  benefit  of  another,  but  by  such 
phrases  as  "I  wish,"  "I  hope,"  "I  desire"  (or  the  hke)  that 
the  gift  may  be  held  by  the  donee  for  the  benefit  or  use  of  a 
third  party,  the  question  will  then  arise  whether  such  expres- 
sions shall  be  construed  as  imperative  and  shall  be  so  interpreted 
as  to  fasten  a  trust  upon  the  donee,  or  whether,  they  shall  be 
regarded  as  indicating  a  mere  wish,  the  comj^liance  with  which 
is  left  to  the  donee's  discretion.  The  question  has  been  con- 
sidered in  very  many  cases,  and  the  doctrine  has  been  subject 
to  some  fluctuation. 

Words  of  expectation,  hope,  desire,  or  recommendation,  used 
by  testators  in  the  manner  above  indicated — that  is,  attached  to 
and  qualifying  an  absolute  gift — are  termed  "precatory  words;" 
and  the  rule  in  England  upon  this  subject  formerly  was  that 
whenever  property  is  given  by  will  to  one  person,  coupled  with 
expressions  of  expectation,  request,  desire,  or  recommendation 
that  he  will  use  oi'  dispose  of  the  same  for  the  benefit  of  another, 
the  donee  will  be  considered  a  trustee  of  the  property  for  the 
purposes  indicatcnl  by  the  testator,  unless  it  should  appear 
from  other  expressions  in  the  will  that  the  application  or  non- 


CH.  II.]  EXPRESS   TRUSTS.  125 

application  of  the  subject  to  the  designated  object  was  intended 
to  be  left  to  the  option  of  the  donee.  In  other  words,  such  ex- 
pressions were  considered  as  prima  facie  imperative — the  wish  of 
the  testator,  like  the  request  of  a  sovereign,  was  to  be  treated 
as  equivalent  to  a  command.^ 

But  within  the  last  few  years  the  doctrine  has  changed;  and 
the  English  rule  now  is  that  precatory  words  are  not  to  be  re- 
garded as  imperative  unless  it  is  plain  from  the  context  that 
the  testator  so  intended  them.'  Prima  facie  a  mere  request, 
or  an  expression  of  hope  or  confidence  or  expectation,  does  not 
import  a  command. 

The  modern  leading  English  case  is  In  re  Adams  and  the 
Kensington  Vestry.^  There  the  testator  gave  all  his  real  and 
personal  estate  to  his  wife,  "in  full  confidence  that  she  would 
do  what  was  right  as  to  the  disposal  thereof  between  his  chil- 
dren, either  in  her  hfetimc  or  by  will  after  her  decease."  The 
Court  of  Appeal  decided  that  the  widow  took  an  al^solute  in- 
terest, unfettered  by  any  trust  in  favor  of  the  children. 

Long  before  this  case,  indeed,  the  doctrine  of  the  creation  of 
trusts  by  precatory  words  had  by  no  means  been  regarded  with 
invariable  favor  in  England,'*  and  in  many  cases  a  disposition 
had  been  evinced  to  qualify  it  or  apply  it  very  guardedly.^  In 
Lambe  v.  Eames  ^  Lord  Justice  James  took  a  decided  stand 
against  the  doctrine;  and  his  views  were  approved  and  adopted 
in  the  leading  case  above  cited.'' 

1  See  the  remarks  of  Lord   Lang-  *  Sale  v.  Moore,  1  Sim.  540. 

dale,  M.  R.,  in  Knight  v.  Knight,  '.i  ^  Briggs  v.  Penny,  3  MacN.  &  G. 

Beav.  173;  Knight  v.  Boughton,   11  546;  Johnston  ?'.  Rowlands,  2  DeG.  & 

CI.  &  Fin.  513;  and  Mason  v.  Lim-  Sm.  356;  Webb  v.  Wools,  2  Sim.  N. 

bury,  cited  in  Vernon  I'.  Vernon,  Am-  R.  267;  Reeves  v.   Baker,   18  Beav. 

bier,  4.  372;  Hood  v.  Oglander,  34  L.  J.  Ch. 

2  .Same  rule  laid  down  In  re  Ham  11-  528;  and  McCormick  v.  Grogan,  L.  R. 
ton.  Trench  v.  Hamilton  [1895],  1  Ch.  4  H.  L.  82. 

373.     Affirmed  by  C.   A.   [1895],    2  e  L.  R.  6  Ch.  App.  597. 

Chan.   370.     In   this   case   Malim   v.  7  Jn  re  Adams  and  the  Kensington 

Keighley,  2  Ves.  Jr.  335,  post,  §  73,  Vestry,  27  Ch.  D.  411.    See  also  In  re 

was  not  followed.     See  also  Hill  v.  Hutchinson   and   Tenant,    S   Ch.    D. 

Hill  [1897],  1  Q.  B.  483;  and  Estate  540;  Mussoorie   Bank   v.   Raynor,    7 

of  Marti,  132  Cal.  666.     In  this  last  App.    Cas.    321;    and    Hanbury    r. 

case  the  English  rule  was   followed  Fisher  [1904],    1   Ch.   415.      See   the 

and   the   statement  in   the  text  ap-  remarks  of  Jessel,   M.   R.,  in   Stead 

proved.  V.  Mellor,  5  Ch.  D.  227;  and  Parnall 

^  27    Ch.   D.    394.      Brett's   Lead.  v.  Parnall,  9  Ch.  D.  96. 
Cas.  in  Eq.  13. 


126  EXPRESS   TRUSTS.  [PART  I. 

72.  Doctrine  on  this  subject  in  tlie  United  States  gener- 
ally ;  in  Pennsylvania  and  Connecticut. 

In  the  United  States  the  rule  in  the  different  states  has  been 
by  no  means  uniform. 

In  some  states  the  tendency  has  been  in  favor  of  giving  an 
imperative  construction  to  precatory  words.^ 

In  Massachusetts,  although  in  Warner  v.  Bates,'  where  the 
facts  were  very  similar  to  those  in  Adams  and  the  Kensington 
Vestry,  a  decision  in  favor  of  the  creation  of  a  trust  was  reached, 
yet  in  the  more  recent  case  of  Aldrich  v.  Aldrich  ^  it  was  said  (in 
speaking  of  the  old  rule),  that  the  tendency  of  the  later  decisions 
was,  if  not  to  relax  it,  at  least  not  to  extend  it.  It  was  there- 
fore held  that  the  true  views  were  those  which  had  been  ex- 
pressed in  Lambe  v.  Eames,  and  that,  in  the  case  in  hand,  no 
trust  had  been  created. 

In  Connecticut  and  Pennsylvania  the  doctrine  that  precatory 
words  are  to  be  considered  as  prima  facie  imperative  has  been 
regarded  with  disfavor.  In  the  former  state  the  earlier  deci- 
sion of  Bull  V.  Bull  ■*  was  disapproved  in  Gilbert  v.  Chapin ; ' 
while  in  the  latter,  in  Pennock's  Estate,®  the  conclusions  reached 
by  the  court  were,  that  "words  in  a  will,  expressive  of  desire, 
recommendation,  and  confidence,  are  not  words  of  technical, 
but  of  common  parlance,  and  are  not  prima  facie  sufficient  to 
convert  a  devise  or  bequest  into  a  trust;  and  the  old  Roman 

1  Harrisons  v.  Harrison's  Adm'r,  2  2  gg  Mass.  274.     See  also  Spooner 

Gratt.  1;  Reid's  Adm'r  v.  Blackstone,  ?".  Lovejoy,  108  Mass.  533. 

14  Id.  363  (though  see  Crump  v.  3  172  Mass.  101.  See  also  Durant 
Reid's  Adm'r,  6  Id.  372);  Cole  v.  v.  Smith,  159  Mass.  229;  Poor  v. 
Littlefield,  35  Me.  439;  Dresser  v.  Bradbury,  196  Mass.  207,  and  Baker 
Dresser,  46  Id.  58;   Erickson  v.  Wil-  v.  Baker,  53  W.  Va.  165. 

lard,  1  N.  H.  217;  Foster  v.  Willson,  ^  8  Conn.  47. 

68  N.  H.  241;  Lucas  v.  Lockhart,  10  s  19  Conn.  351.    Dexter  v.  Evans, 

Sm.  &  Marsh.  466;  Ward  v.  Peloubet,  63  Conn.  58,  is  consistent  with  this 

10  N.  J.  Eq.  305;  Carson  v.  Carson,  1  ruling,  for  there  the  whole  will  showed 

Ired.    Eq.    329;    Chase    v.    Chase,    2  that  the  words  were  used  in  an  im- 

Allen,    101 ;    Loring    v.    Loring,    100  perative  sense.    Hughes  v.  Fitzgerald, 

.Mass.  340;  Collins  v.  Carlisle,  7  B.  78  Conn.  4. 

.Mon.  14;  McRee's  Adm'rs  v.  Means,  «  20  Pa.  268-280.     See  also  Pais- 

34  Ala.  349;  though  see  Ellis  v.  Ellis,  ley's  Appeal,  70  Id.  153;  The  Second 

15  Id.  296;  Haskett  v.  Alexander,  134  Ref.  Pres.  Church  v.  Disbrow,  52  Id. 
Ind.  543;  Cf.  Mitchell  v.  Mitchell,  143  219;  and  Murphy's  Estate,  184  Id. 
Id.  113,  which  is  distinguished  from  314.  See  Rhett  v.  Mason,  18  Gratt. 
the  case  just  cited.    See  also  Lines  v.  541. 

Darden,  5  Fla.  51. 


CH.  II.] 


EXPRESS   TRUSTS. 


127 


and  English  rule  on  this  subject  is  not  part  of  the  common  law 
of  Pennsylvania;"  and  that  "such  words  may  amount  to  a 
declaration  of  trust,  when  it  appears,  from  other  parts  of  the 
will,  that  the  testator  intended  not  to  commit  the  estate  to  the 
devisee,  or  legatee,  or  the  ultimate  disposal  of  it  to  his  kindness, 
justice,  or  discretion."    Later  cases  have  followed  this  rule.' 

In  South  Carolina  and  New  York,  also,  the  disposition  appears 
to  be  to  construe  the  rule  with  strictness,-  in  the  latter  state 
the  English  case,  In  re  Hutchinson  and  Tenant,^  being  followed. 
A  still  more  decided  stand  in  favor  of  the  modern  doctrine  has 
been  taken  in  Maryland  and  in  Tennessee.''  In  New  Jersey^  the 
inclination  now  is  the  other  way,  i.  e.,  in  favor  of  the  old  rule.' 

The  subject  came  before  the  Supreme  Court  of  the  United 
States  in  1888,  in  Colton  v.  ('olton.^  The  gift  there  was  in  the 
following  terms:  "I  give  and  bequeath  to  my  said  wife  all  my 
estate.  ...  I  recommend  to  her  the  care  and  protection  of 
my  mother  and  sister,  and  request  her  to  make  such  gift  and 
provision  for  them  as  to  her  judgment  will  be  best."  The  au- 
thorities were  reviewed;  and  the  conclusion  reached  that  the 
language  in  question  was  to  be  deemed  imperative. 

In  this  conflict  or  apparent  *  conflict  of  authority,  rules  upon 
the  subject  must  be  guardedly  stated. 


73.  What  Precatory  Words  will  create  a  Trust. 

It  is,  of  course,  almost  impossible  to  state,  with  certainty, 
what  particular  precatory  words  will  or  will  not,  in  any  case, 
create  a  trust;  for  they  are,  in  most  instances,  so  interwoven 
with  other  expressions  that  the  effect  to  be  given  to  them  nmst 
depend  very  much  upon  the  language  of  the  particular  instru- 
ment  under   consideration.     The   following  expressions,   how- 


1  Bowlby  V.  Thunder,  105  Pa.  17o; 
Hopkins  v.  (Hunt,  HI  Id.  287;  Pres- 
byterian Board  v.  Culp,  151  Id.  467. 
See  Burt  r.  Herron,  66  Id.  400. 

2  Lesesne  v.  Witte,  5  S.  C.  450. 
See  In  re  Foley's  Will,  10  N.  Y.  Supp 
12;  Post  V.  Moore,  181  N.  Y.  15. 
Delaware  court  construes  strictly, 
Bryan  v.  Milby,  6  Del.  Ch.  208,  also 
in  North  Carolina,  St.  James  v.  Bag- 
ley,  138  N.  C.  384. 

3  8  Ch.  D.  540. 

*  Pratt  V.  Sheppard,  etc.,  Hospital, 


88  Md.  610;  Ensley  v.  Ensley,  105 
Tenn.  107. 

5  And  Georgia,  Prince  v.  Barrow, 
120  Ga.  810. 

"  Van  Duyne  r.  Van  Duyne,  2  Mc- 
("art.  503;  overruling  same  case  in  1 
Id.  397;  Eberhardt  v.  Perolin,  48  N.  J. 
Eq.  592. 

^  127  U.  S.  300. 

s  Mr.  Justice  Matthews  in  Colton 
V.  Colton  did  not  seem  to  consider 
that  his  views,  as  expressed  in  that 
case,  were  contrary  to  the  decision  in 


128 


EXPRESS   TRUSTS. 


[part  I. 


ever,  liave  been  held  effective  in  fastening  the  character  of  a 
trust  upon  ^\-hat  would  otherwise  have  been  an  absolute  gift: 
"desire,""  '  "'  recommend,"  '  "not  doubting,"  ^  "in  the  fullest  con- 
fidence," ^  "wish  and  will,"  ^  "allow,"  "^"hope,""^  "entreat,"* 
and,  in  general,  any  words  which  indicate  an  intention  that  the 
iloiico  shouM  iK^t  take  beneficially,  but  should  be  merely  an  in- 
stnuncnt  to  distribute  the  testator's  bounty  to  others.^ 

The  ([uestion  in  all  cases  is  whether  a  tmst  was  or  was  not 
intend(^d  to  be  created,  or,  in  other  words,  whether  the  testator 
designed  to  leave  the  a])plication  or  non-application  of  the 
subject-matter  of  the  becjuest  to  the  designated  object  entirely  to 
the  discretion  of  the  donee,  or  whether  his  meaning  was  that 
his  language  should  be  deemed  imperative,  and  that  such  dis- 
cretion should  be  excluded.^"  This  is  usually  considered,  by  the 
best  authorities,  to  depend  ui)on  three  things:  first,  upon  the 
general  terms  of  the  will;  second,  upon  the  certainty  of  the 
object ;  and  tfiird,  upon  the  certainty  of  the  subject. ^^ 

74.  Are  such  wori\s  prima  facie  imperative? 

First.  Precatory  expressions  may  be  considered  as  impera- 
tive if  they  are  used  in  such  a  way  as  to  show  plainly  an  in- 
tention to  exclude  discretion;  the  wish  of  a  testator,  no  matter 
how  expressed,  if  (^xj^ressed  clearly,  should  be  regarded  as  a 
command.'-    But  unless  precatory  words  are  clearly  so  used, 


In  re  Adams  and  the  Kensington 
Vestry,  27  C'h.  D.  394. 

1  Cruwys  v.  Colman,  9  Vesey,  319; 
Mason  r.  Limbviry  {supra) ;  Erickson 
V.  Willard,  1  X.  li.  217.  "Desire  and 
direct,"  Plant  v.  Plant,  80  Conn.  673. 

-  Malirn  r.  Keighlcy,  2  Ves.  Jr. 
333,  .329;  Pierson  v.  (iarnet,  2  Bro. 
C.  C.  38,  ovcrruliiif;  Cunliffe  r.  Cun- 
liFfo,  .\nih.  0S6;  Tibbits  v.  Tibbits, 
19  Ves.  ()()4;  Ilorwood  v.  West,  1 
Sinn.  &  IStu.  3S7;  Ford  r.  Fowler,  3 
Beav.  146. 

3  Massey  v.  Sherman,  Ambler,  520; 
Parsons  r.  Baker,  IS  ^'es.  476. 

'  Wriiiht  r.  .Vtkyns,  17  Ves.  25"); 
19  Id.  299.  r.  .^  H.  IK;:  and  see 
^Varner  v.  Bates,  9S  Ma.ss.  274;  Har- 
risons r.  Harrison's  .\dm'r.  2  (Iratt. 
1;  Bull  I'.  Bull,  8  Conn.  47;  Dresser 


V.  Dresser,  46  Me.  48;  Shovelton  v. 
Shovelton,  32  Beav.  143. 

5  McRee's  Adm'rs  v.  Means,  34 
Ala.  349. 

6  Hunter  v.  Stembridge,  12  Ga.  192. 

7  Harland  v.  Trigg,  1  Bro.  C.  C.  144. 

8  Prevost  I'.  Clarke,  2  Mad.  458; 
Taylor  v.  George,  2  V.  &  B.  378. 

9  See  Harding  v.  Glyn,  2  Lead. 
Cas.  Eq.  948  (4th  Eng.  ed.)  and 
notes. 

10  Aldrich  r.  Aldrich,  172  Mass.  101; 
Clifford  V.  Stewart,  95  Me.  38. 

11  Briggs  V.  Penny,  3  MacN.  &  G. 
546;  Stead  v.  Mellor,  5  Ch.  Div.  227; 
Lines  v.  Darden,  5  Fla.  51;  Ensley  v. 
Ensley,  105  Tenn.  107;  notes  to 
Harding  v.  GljTi,  2  Lead  Cas.  Eq. 
lit  sup. 

12  Fox's  Appeal,  99  Pa.  286;  Oyster 


CH.  II.] 


EXPRESS   TRUSTS. 


129 


they  will  not  create  a  trust. ^  It  is  seldom,  indeed,  that  ex- 
pressions of  this  nature  are  found  standing  alone,  and  not 
strengthened,  or  qualified,  or  controlled  by  the  context;  but  if 
it  is  clear  from  the  whole  will  that  discretion  is  excluded,  prec- 
atory words  ought  to  be  considered  as  imposing  an  obligation, 
and  not  merely  as  constituting  a  request  which  the  person  to 
whom  it  is  addressed  is  at  liberty  to  disregard.  The  reason  is 
obvious.  A  will,  in  its  very  nature,  is  the  disposition  which 
the  testator  desires  to  have  made  of  his  estate  after  his  death. 
All  expressions  in  it  indicative  of  his  wish  or  will  are  commands. 
As  a  matter  of  course,  the  piitna  fades  of  a  mere  recjuest,  es- 
tablished by  the  use  of  precatory  words,  is  liable  to  be  rebutted 
by  any  other  expressions  which  indicate  an  intention  on  the 
part'of  the  testator  that  they  should  be  taken  in  an  imperative 
sense;  in  other  words,  this  particular  canon  of  construction,  now 
under  consideration,  is,  like  all  others,  subordinate  to  the  gen- 
eral rule  that  the  intenliori  of  the  testator  as  gathered  from  the 
whole  will  is  to  govern." 

It  is  to  be  observed  here,  that  mere  discretion  as  to  the  dis- 
tribution of  the  subject-matter  of  the  bequest  among  the  desig- 
nated objects,  or  a  discretion  as  to  the  selection  of  a  recipient  of 
the  testator's  bounty  out  of  a  particular  class,  will  not  detract 
from  the  imperative  character  of  precatory  expressions,  and  the 
donee  will  be  considered  as  a  trustee  with  a  power  of  distribution 
or  selection.^ 

75.  Certainty  of  the  object  is  an  element  for  consideration. 

Second.  The  determination  of  the  question  whether  or  not 
discretion  has  been  excluded,  often  depends  upon  the  degree 
of  certainty  with  which  the  objects  of  the  supposed  bounty  are 
pointed  out.    If,  for  example,  a  gift  is  bestowed  coupled  with  a 


V.  Knull,  137  Id.  448;  Foster  r.  Will- 
son,  68  N.  H.  241. 

1  Burt  V.  Herron,  66  Pa.  402.  See 
Ilambel  v.  Hambel,  109  la.  459;  Wil- 
liams V.  The  Committee,  92  Md. 
497. 

2  Eaton  )'.  Watts,  L.  R.  4  Eq.  151, 
155;  Young  v.  Martin,  2  Y.  &  C.  582; 
Brunson  v.  King,  2  Hill  Ch.  490;  Van 
Amee  v.  Jackson,  35  Vt.  177;  Negroes 
Chase  el  al.  v.  Plummer,  17  Md.  165; 

9 


Spooner  r.  Lovejoy,  108  Mass.  533; 
Bacon  v.  Ransom,  139  Id.  117;  Bid- 
die's  Appeal,  SO  Pa.  258;  Mills  v. 
Newberry,  112  111.  123;  Pratt  v. 
Sheppard,  etc.,  Hospital,  88  Md. 
610;  Foster  v.  Willson,  68  N.  II. 
241. 

3  Shovelton  v.  Shovelton,  32  Beav. 
143;  Harding  v.  Glyn,  1  Atk.  469; 
2  Lead.  Cas.  Eq.  950  (4th  Eng. 
ed.). 


130  EXPRESS   TRUSTS.  [PART  I. 

suggestion  or  recommendation  that  it  be  applied  by  the  donee 
to  objects  which  are  vaguely  and  imperfectly  described,  this 
vagueness  will  be  regarded  by  the  court  as  tending  to  show  that 
the  application  or  non-application  of  the  gift  was  to  be  left  to 
the  option  of  the  donee.  It  is  true,  indeed,  that  certainty  is 
required  in  all  trusts,  no  matter  how  they  may  be  created.  "To 
constitute  a  valid  trust,"  said  Sir  William  Grant,  M.R.,  in 
Cruwys  v.  Colman,*  "undoubtedly  three  circumstances  must 
concur:  sufficient  words  to  raise  it,  a  definite  subject,  and  a  cer- 
tain or  ascertained  object."  There  is,  however,  this  difference 
between  trusts  created  by  technical  words  and  those  raised  by 
expressions  of  recommendation  and  request.  In  the  former,  if 
the  tmst  fails  for  want  of  certainty  in  the  objects,  the  trustee 
will  not  hold  beneficially,  but  there  will  be  a  resulting  trust  in 
favor  of  the  donor  of  the  estate;  in  the  latter  this  uncertainty 
will,  in  many  instances,  take  away  entirely  from  the  gift  its 
fiduciary  character,  and  cause  it  to  vest  beneficially  in  the  donee. 
In  one  case  a  trust  is  created,  but  fails  for  want  of  certainty 
in  its  objects;  in  the  other  the  want  of  certainty  is  evidence  to 
show  that  the  donor  had  never  intended  to  ci'eate  a  trust. ^ 
"Wherever,"  says  the  Lord  Chancellor,  in  Morice  v.  The  Bishop 
of  Durham, •"*  "the  subject  to  be  administered  is  trust  property, 
and  the  objects  for  whose  benefit  it  is  to  be  administered  are  to 
be  found  in  a  will  not  expressly  creating  a  trust,  the  indefinite 
nature  and  quantum  of  the  subject,  and  the  indefinite  nature 
of  the  objects  are  alwaj^s  used  by  the  court  as  evidence  that 
the  mind  of  the  testator  was  not  to  create  a  trust;"  and  this 
rule  has  been  acted  upon  in  many  cases.^  But,  although  uncer- 
tainty in  the  object  is  evidence  to  show  that  a  trust  was  not  in- 
tended, it  is  by  no  means  conclusive  evidence;"'  for  if  the  prec- 
ator}'  words  are  strong,  and  not  qualified  by  other  expressions, 
the  legatee  or  devisee  will  not  take  beneficially,  although  the 
trust  should  fail  for  want  of  certainty  in  the  object;  and  still 
more  so  will  this  be  the  case  if  other  provisions  in  the  will  in- 

1  9  Vesey,  .323.  r.  Tolson,   10  G.  &  J.  159;  Giles  v. 

2  Pratt  V.  Shcppard,  etc.,  Hospital,       Anslow,  128  111.  187;  Pratt  v.  Shep- 
SS  Md.  610.  pard,    etc.,    Hospital,    88    Md.    610; 

3  10  Vesey,  536.  Williams  v.  The  Committee,  92  Id. 
*  Harland  v.  Trigg,  1  Bro.  C.  C.  142;       497. 

Meredith    v.    Heneage,    1    Sim.    542;  s  Pratt  i).  Sheppard,  etc.,  Hospital, 

Harper  v.  Phelps,  21  Conn.  259;  Hood  88  Md.  610;  Williams  v.  The  Com- 
V.  Oglander,  34  L.  J.  Ch.  528,  Tolson      mittee,  92  Id.  497. 


CH.  II.] 


EXPRESS   TRUSTS. 


131 


dicate  the  intention  of  the  testator  to  be  that  the  donee  should 
take  only  as  a  trustee.^ 

76.  Certainty  of  the  subject. 

Third.  The  certainty  with  which  the  subject  of  the  bequest 
or  devise  is  described  must  also  be  taken  into  consideration.^ 
It  very  often  happens  that  a  testator  gives  property  to  one  person 
with  a  request  or  hope  that  after  the  decease  of  the  first  taker 
the  ''surplus"  (describing  it  by  this  or  some  other  uncertain 
word)  shall  be  distributed  among  some  designated  objects.  It 
has  been  held  that  such  terms  indicate  a  desire  on  the  part  of 
the  testator  that  the  first  taker  should  have  absolute  control 
over  the  property,  and  that  its  ultimate  disposition  should  de- 
pend entirely  upon  his  discretion. •''  But  any  words  which  point 
out  clearly  what  the  property  is  to  which  the  trust  is  intended 
to  apply  will  be  sufficient,  no  matter  how  untechnical  and  un- 
artifi'^-ial  they  may  be." 

It  may,  perhaps,  be  doubted  whether  this  doctrine  of  preca- 
tory trusts  should  be  extended  to  conveyances  inter  vivos.  It 
was,  nevertheless,  so  extended  in  Liddard  v.  Liddard,^  by  the 
Master  of  the  Rolls,  Lord  Romilly. 

77.  Powers  in  Trust ;  Salmhury  v.  Denton, 

It  sometimes  happens  that  a  trust  is  created,  of  which  the 
subject  is  not,  strictly  speaking,  property,  but  only  a  power  or 
authority  to  dispose  of  property.  A  power  is  usually  defined 
to  be  an  authority  whereby  a  person  is  enabled  to  dispose  of  an 
interest  vested  either  in  himself  or  in  another.  The  exercise  of 
these  powers,  in  most  instances,  depends  upon  the  discretion  of 
the  donee  of  the  power,  and  no  person  can  take  by  virtue  of  the 


1  Bernard  v.  MinshuU,  Johns.  276; 
Ingram  v.  Fraley,  29  Ga.  553;  Hill  on 
Trustees,  110  (4th  Am.  ed.),  notes. 
The  rule  laid  down  in  Briggs  r.  Penny, 
3  MacN.  &  G.  546,  on  this  subject  has 
not  met  with  entire  approval.  See 
Hawkins  on  Wills,  160.  But  see  In 
re  Foley's  Will,  10  N.  Y.  Supp.  12. 

2  Swarthout  v.  Swarthout,  et  al., 
Ill  Wis.  102. 

3  Knight  )'.  Boughton,  11  CI.  &  F. 
513;  Clancarty  v.  Clancarty,  31  L.  R. 
Ir.  549;  Pennock's  Estate,  20  Pa.  268; 
Cowman  V.  Harrison,  10  Hare,  234 ; 


Palmer  v.  Simmonds,  2  Dr.  221; 
Smith  V.  Bell,  Mart.  &  Yerg.  302; 
Constable  v.  Bull,  3  DeG.  &  Sm.  411; 
Nunn  i\  O'Brien,  83  Md.  198;  Durant 
V.  Smith,  159  Mass.  229;  Coulson  v. 
Alpaugh,  163  111.  298;  Hill  on  Trus- 
tees, 119  (4th  .\m.  ed.).  See  the 
rules  upon  the  subject  of  precatory 
trusts  stated  in  Hill  on  Trustees,  73 
(4th  Am.  ed.),  and  approved  in  Perry 
on  Trusts,  §  114,  note. 

*  Cruwys  v.  Colman,  9  Ves.  319; 
Hill  on  Trustees,  74. 

5  28  Beav.  266. 


182  EXPRESS   TRUSTS.  [PART   I. 

power  unless  the  donee  thereof  chooses  to  exercise  this  discre- 
tion. But  there  are  also  powers  which  partake  of  the  nature  of 
trusts.  "There  are  not  only  a  mere  trust  and  a  mere  power," 
said  Lord  Eldon,  in  Brown  v.  Higgs  ^  (which  is  the  leading 
authority  upon  the  subject  of  powers  in  trust),  "but  there  is 
also  known  to  this  court  a  power  which  the  party  to  whom  it 
is  given  is  entrusted  and  required  to  execute;  and  with  regard 
to  that  species  of  power  the  court  considers  it  as  partaking  so 
much  of  the  nature  and  qualities  of  a  trust,  that  if  the  person 
who  has  that  duty  imposed  upon  him  does  not  discharge  it, 
the  court  will  to  a  certain  extent  discharge  the  duty  in  his  own 
room  and  place."  ^  This  rule  has  been  followed  both  in  Eng- 
land and  in  the  United  States.^  If  the  donee  of  a  power  in  trust 
chooses  to  exercise  the  power,  he  can  select,  at  his  discretion, 
any  one  of  the  designated  class."*  If  he  makes  no  selection,  a 
court  of  chancery  will  not  attempt  to  exercise  any  discretion, 
but  will  make  equal  distribution  among  the  parties  who  con- 
stitute the  favored  class.^  Thus,  in  the  case  of  Salusbury  v. 
Denton, "^  a  testator  gave  a  fund  to  his  widow  to  be  disposed  of 
by  her  partly  to  charity  and  partly  among  such  relations  as  she 
should  select.  Upon  the  death  of  the  widow  without  exercising 
the  power,  it  was  held  that  the  charity  was  entitled  to  one 
moiety  of  the  fund,  and  that  the  other  should  be  divided  among 
those  entitled  under  the  statute  of  distributions. 

1  8  Vesey,  570;  4  Id.  708;  5  Id.  495.  <  In  Willis  v.  K\Tner,  7  Ch.  D.  183 

2  See  also  Harding  v.  Glyn,  1  Atk.  (a  case  of  the  first  impression),  it  was 
469;  Cole  v.  Wade,  16  Ves.  42.  decided  by  Jessel,  M.R.,  that  where  a 

3  Brown  v.  Pocock,  6  Sim.  257;  trust  had  been  created  by  will,  in 
Croft  V.  Adam,  12  Sim.  639;  Salus-  favor  of  "children"  simpliciter,  the 
bury  V.  Denton,  3  K.  &  J.  529;  In  re  trustee  might,  in  executing  the  trust, 
Caplin's  Will,  34  L.  J.  Ch.  x.  s.  578;  limit  the  shares  of  the  daughters 
Penny  r.  Turner,  2  Phil.  493;  Fordyce  to  their  separate  use.  The  trust  in 
V.  Bridges,  Id.  497;  White's  Trusts,  that  case  was  created  by  precatory 
Johns.  656;  Minors  r.  Batteson,  L.  R.  words. 

1  .\pp.  Cas.  428;  Withers  v.  Yeadon,  ^  A  Court  of  Chancery  will  not  in- 

1  Rich.  Eq.  324;  Collins  ?•.  Carlisle,  7  terfere  with  discretion  in  cases  of  pri- 

B.  Mon.  14;  Gibbs  v.  Marsh,  2  Mete.  vate  trusts,  and,  a  fortiori,  in  those  of 

243;    Miller    i\    Meetch,    8    Pa.    417;  a  public  character.    Haight  ?'.  Day,  1 

Smith?'.  Bowen,  35  N.  Y.  83;  Whiting  Johns.   Ch.   21.     See,   also,    Naglee's 

V.    Whiting,   4   Gray,   240;   Chase   v.  Est.,  52  Pa.  159. 

Chase,    2    Allen,     101;    Hatchett    v.  « 3   K.   &   J.    529.     See   Rorke   v. 

Hatchctt,    103   Ala.   556;    French   r.  Abraham  [1895],  1  I    R.  334;  Glover 

Westgate,  70  N.  H.  229;  Perry  on  v.  Condell,  163  111.  566-594;  Smith  v. 

Trusts,  §  248  et  seq.   .  Floyd,  140  N.  Y.  337. 


CH.  II.]  EXPRESS   TRUSTS.  133 

In  those  cases  in  which  the  execution  of  the  power  is  not  to 
take  effect  out  of  an  interest  conferred  upon  the  donee  of  the 
power,  the  courts  have  exhibited  greater  reluctance  in  favoring 
the  power  than  in  those  cases  in  which  the  donee  of  the  power 
would  be  entitled  beneficially  in  default  of  the  execution  of  the 
power;  because,  in  the  latter  case  there  would  be  an  intention 
of  the  testator  to  qualify  the  gift  to  the  donee  of  the  power 
which  would  be  defeated,  whereas  no  such  intention  can  be 
presumed  to  exist  where  the  donee  of  the  power  has  no  interest 
in  the  estate.^  However,  the  tendency  of  the  courts  is  now 
towards  favoring  the  objects  of  the  power. ^ 

It  is  only  when  the  power  is  in  trust  that  a  court  of  equity 
will  decree  its  execution.^  Therefore,  it  would  seem  to  follow 
that  there  must  be  sufficient  certainty  in  declaring  the  objects 
and  pointing  out  the  subject  of  the  trust ;  and  that  no  trust  will 
be  construed  to  exist  when  there  is  nothing  to  show  with  cer- 
tainty in  whose  favor  or  in  what  shares  a  gift  was  intended.'* 

1  Hill  on  Trustees,  68;  Harding. y.  2  Hill  on  Trustees,  69. 

Glyn,  1  Atk.  468;  Brown  v.  Higgs,  4  3  Towler  v.  Towler,  142  N.  Y.  371; 

Ves.  Jr.  708;  s.  c.  8  Ves.  561;  Bull  v.  Osborne  v.  Gordon,  86  Wis.  92. 

Vardy,  1  Ves.  271;  2  Sudg.  Pow.  177;  <  In  re  Eddowes,  1  Dr.  &  Sm.  395;. 

Duke  of  Marlborough  v.  Godolphin,  2  In  re  Weekes'  Settlement  [1897],   1 

Ves.  Sr.  61 ;  Crossling  v.  Crossling,  2  Ch.  289. 
Cox,  396. 


134 


IMPLIED   TRUSTS. 


[part  I. 


CHAPTER  III. 


IMPLIED   TRUSTS. 


78.  Implied  Trusts  of  two  kinds:  Re- 

sulting Trusts  and  Construct- 
ive Trusts. 

79.  Resulting  Trusts  of  four  kinds. 

80.  Purchase-money    paid    by    one; 

title  taken  in  name  of  another. 

81.  Requisites  to  such  a  Trust. 

82.  Statute  of  Frauds. 

83.  Parol  evidence  admissible. 

84.  Advancements. 

85.  Trusts  of  this  kind  abolished  in 

certain  States. 

86.  Purchases  by  Trustees  with  Trust 

Funds:  Following  Trust  Funds. 


87.  Conveyance  where  Trust  is  not 

declared  or  fails. 

88.  Where  the  beneficial  interest  is 

not  exhausted. 

89.  Exceptions  in  favor  of  charities. 

90.  Conveyances  without  considera- 

tion. 

91.  Constructive  Trusts. 

92.  Trustee  cannot  acquire  rights  an- 

tagonistic to  cestui  qzie  trust. 
9:3.  Extent  of  this  rule. 

94.  Trustee  cannot  purchase  at  his 

own  sale. 

95.  Other  Constructive  Trusts. 


78.  Implied  Trusts  of  two  kinds:  Resulting  Trusts  and 
Constructive  Trusts. 

Trusts  by  implication  of  law  may  arise  either  for  the  pur- 
pose of  carrying  out  the  presumed  intention  of  the  parties  or 
they  may  be  entirely  independent  of,  or  even  contrary  to,  in- 
tention. Trusts  of  the  first  class  are  said  to  result  by  operation 
or  presumption  of  law  from  certain  acts  or  relations  of  parties 
from  which  an  intention  to  create  a  trust  is  supposed  to  exist, 
and  they  are,  therefore,  called  Resulting  or  Presumptive  Trusts. 
Trusts  of  the  second  class  exist  purely  by  construction  of  law, 
without  any  actual  or  supposed  intention  that  a  trust  should  be 
created ,  but  merely  for  the  purpose  of  asserting  rights  of  parties 
or  of  frustrating  fraud.  They  are  termed,  therefore.  Constructive 
Trusts.i 


79.  Resulting  Trusts  of  four  kinds. 

Resulting  trusts  may  arise  in  several  ways,  and  may  be  con- 

1  The  term  "  Constructive  Trusts "  See    the    language    of    Lord    Esher, 

is    somewhat    arbitrary.      It    is,    by  M.R.,  in   Soar   v.  Ashwell   [1893],   2 

some  authors  and  judges,  used  syn-  Q.  B.  390-393. 
onymously   with   "Implied  Trusts." 


CH.  III.] 


IMPLIED   TRUSTS. 


135 


veniently  divided  into  the  following  classes:  (1)  Where  a  pur- 
chaser pays  the  purchase-money,  but  takes  the  title  in  the  name 
of  another;  (2)  where  a  trustee  or  other  fiduciary  buys  prop- 
erty in  his  own  name,  but  with  trust  funds;  (3)  where  the  trusts 
of  a  conveyance  are  not  declared,  or  are  only  partially  declared, 
or  fail;  and  (4)  where  a  conveyance  is  made  without  any  con- 
sideration, and  it  appears  from  circumstances  that  the  grantc' 
was  not  intended  to  take  beneficially.^ 

80.  Purchase-money  paid  by  one;  title  taken  in  name  of 
another. 

The  nature  of  resulting  trusts  of  the  first  of  the  above  classes 
was  clearly  stated  by  Lord  Chief  Baron  Eyre  in  the  leading 
case  of  Dyer  v.  Dyer,^  and  his  language  has  been  approved 
and  followed  both  in  England  and  in  this  country.  "The  result 
of  all  the  cases,"  he  says,  "without  a  single  exception,  is  that 
the  trust  of  a  legal  estate,  whether  freehold,  copyhold,  or  leaso- 


1  This  classification  adopted  in 
Williams  v.  Williams,  108  Iowa,  91; 
Avery  v.  Stewart,  136  N.  C.  426.  No 
trust  results  in  favor  of  a  person 
furnishing  the  consideration  for  land 
the  title  to  which  with  his  consent  is 
taken  in  the  name  of  another.  3 
Comp.  Laws  of  Mich.  §§  8835,  8837. 
Hamilton  v.  Wickson,  131  Mich. 
71. 

2  2  Cox,  92;  1  Lead.  Cas.  Eq. 
165;  203  (4th  Eng.  ed.).  See  Buck 
V.  Pike,  2  Fairfield,  9;  Pinney  v.  Fel- 
lows, 15  Vt.  525;  Clark  v.  Clark,  43  Id. 
685;  Boyd  v.  McLean,  1  Johns.  Ch. 
582;  Buffalo,  etc.,  R.  R.  Co.  v.  Lamp- 
son,  47  Barb.  533;  Stratton  v.  Dia- 
logue, 16  N.  J.  Eq.  70;  De  Peyster 
V.  Gould,  3  Id.  480;  Jackman  v. 
Ringland,  4  W.  &  S.  149;  Williard 
V.  Williard,  56  Pa.  119;  Bickel's  Ap- 
peal, 86  Id.  204;  Newells  v.  Morgan, 
3  Harring.  229;  HolUs  v.  Hayes,  1 
Md.  Ch.  479;  Cecil  Bank  v.  Snively, 
23  Md.  261;  Bank  of  United  States 
V.  Carrington,  7  Leigh,  566;  Powell  v. 
Powell,  1  Freem.  Ch.  134;  Thomas 
V.    Walker,    6    Humph.    93;    Butler 


V.    Rutledge,    2    Cold.    4;    Perry    v. 
Head,   1   A.  K.   Marsh,  47;  Snelling 
V.  Utterback,  1  Bibb,  609;  Martin  v. 
Martin,  5  Bush,  54;  Gass  i\  Gass,  1 
Heisk.    613;    Sandford     v.    Weeden. 
2    Id.    71;    Elliott    r.    .\rmstrong,    2 
Blackf.  198;  Paul  v.  Chouteau,  14  Mo. 
580;   Tarpley    v.    Poage's   Adm'r,    2 
Tex.   150;  Smith   r.   Bokuet,   27   Id 
507;   Robinson   v.   Robinson,   22   la 
427;  Perry  on  Trusts,  §  126;  2  Sug 
V.   &   P.   701    (8th   Am.   ed.).     See^ 
also,  Williams  r.  Brown,  14  111.  200 
Nichols    V.    Thornton,    16    Id.    113 
Creed  v.  Lancaster  Bank,  1  Ohio  St 
R.  1;  Barron  v.  Barron,  24  Vt.  375; 
Beck  r.  Graybill,   28  Pa.  66;  Kisler 
V.   Kisler,   2  Watts,   323;  Jenison   v. 
Graves,  2  Black.   141;   Bear  v.  Koe- 
nigstein,    16    Neb.    65;    Champlin   v. 
Champlin,     136    111.    309;    Summers 
V.  Moore,  113  N.  C.  394;  Brennaman 
V.   Schell.    212    111.    356;   Casciola   v. 
Donatelli,    218   Pa.   624;    Herlihy   v. 
Coney,  99  Me.  469;  Lahey  v.  Brod- 
erick,  72  N.  H.  180;  Beloate  v.  Hen- 
nessee,  81  Ark.  478;  Howe  v.  Howe, 
199  Mass.  598. 


136 


IMPLIED   TRUSTS. 


[part  I. 


hold;  whether  taken  in  the  names  of  the  purchaser  and  others 
jointly,  or  in  the  names  of  others  without  that  of  the  purchaser, 
whether  in  one  name  or  several,  whether  jointly  or  successively, 
results  to  the  man  who  advances  the  jjurchase-money."  To  il- 
histrate  the  doctrine  thus  stated,  suppose  A  advances  the 
purchase-money  of  an  estate,  and  a  conveyance  of  the  legal 
interest  in  it  is  made  either  to  B,  or  to  B  and  C,  or  to  A,  B,  and  C 
jointly,  or  to  A,  B,  and  C  successively.  In  all  these  cases,  if  B 
and  C  are  strangers,  a  trust  will  result  in  favor  of  A.^ 

The  reason  of  this  doctrine  is,  that  the  man  who  pays  the 
purchase-money  is  supposed  to  become,  or  to  intend  to  become, 
the  owner  of  the  property,  and  the  beneficial  title  follows  that 
supposed  intention.^ 

This  doctrine  is  in  analogy  to  the  common-law  rule,  that 
where  there  is  a  feotfment  without  consideration,  the  use  will 
result  to  the  feoffor.^ 

It  applies  to  both  realty  and  personalty;''  and  trusts  of  this 
nature  are  expressly  excepted  out  of  the  Statute  of  Frauds.^ 


1  1  Lead.  Cas.  in  Eq.  173;  Carter  v. 
Challen,  83  Ala.  135;  O'Connor  v. 
Irvine,  74  Cal.  435.  Resulting  Trusts 
discussed  in  89  Law  Times,  152; 
Kansas  Gen.  Stat.  1901,  §  7880, 
"  When  a  conveyance  for  a  valuable 
consideration  is  made  to  one  person 
and  the  consideration  therefor  paid 
by  another,  no  use  or  trust  shall  re- 
sult in  favor  of  the  latter  but  the  title 
shall  vest  in  the  former." 

2  But  this  rule  will  not  apply  where 
the  intention  is  otherwise.  N  con- 
veyed to  F.  The  grantee  was  desig- 
nated "Trustee  for  R,"  and  the 
habendum  clause  was,  "To  have  and 
to  hold  the  above  described  land  and 
premises,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part 
F,  his  heirs  and  assigns,  to  the  only 
proper  use,  benefit  and  behoof  of  R 
aforesaid,  her  heirs  and  assigns  for- 
ever." The  consideration  proceeded 
from  F,  who  stood  in  loco  parentis  to 
R.  Held  that  if  the  statute  of  uses 
executed  the  legal  estate  in  K,  it  ditl 
not,  because  the  consideration  prt)- 


ceeded  from  F,  make  her  a  Trustee 
for  him.  A  trust  will  not  be  raised 
in  opposition  to  the  declaration  of  the 
person  who  advances  the  money  or 
the  obvious  purpose  and  design  of 
the  transaction.  Wolters  v.  Shraft, 
69  N.  J.  Eq.  215. 

'^  Per  Eyre,  C.  B.,  in  Dyer  v.  Dyer 
{supra,  p.  135,  n.  2). 

*  Ellsworth  V.  M.  T.  Ames  Co.,  125 
111.  223.  But  not,  it  is  said,  to  perish- 
able property;  LTnion  Bank  v.  Baker, 
8  Hump.  447;  Perry  on  Trusts, 
§  130;  nor  to  a  mere  claim  to  prop- 
erty; Mandeville  v.  Solomon,  33  Cal. 
38. 

5  29  Car.  II,  c.  3,  §  8.  See  Gal- 
braith  v.  Galbraith,  190  Pa.  225.  In 
Hoxie  r.  Carr,  1  Svnn.  187,  it  was  said 
by  Judge  Story  that  the  exception  of 
resulting  trusts  from  the  Statute  of 
lYauds  was  merely  in  affirmance  of 
the  general  law;  and  that,  therefore, 
in  Rhode  Island,  where  the  exception 
did  not  exist,  the  rule  was  the  same  as 
in  England.  This  was  followed  in  Mc- 
Guire  v.  Ramsey,  4  Eng.  (Ark.)  525. 


I 


CH.  III.] 


IMPLIED   TRUSTS. 


137 


Where,  however,  an  agent  buys  land  for  his  principal,  and  not 
only  takes  the  conveyance  in  his  own  name,  but  also  pays  the 
price  out  oj  his  own  funds,  no  resulting  trust  will  arise,  and  the 
case  will  fall  within  the  Statute  of  Frauds,  because  in  such  a 
case  there  is  no  payment  of  the  purchase-money  upon  which  the 
right  of  the  principal  can  rest,  but  that  right  is  dependent  solely 
upon  the  verbal  promise  of  the  agent. ^  Where  no  money  is 
advanced,  and  there  is  nothing  more  in  the  transaction  than  is 
implied  from  the  violation  of  a  parol  agreement,  equity  will  not 
decree  the  purchaser  a  trustee.'  A  resulting  trust  of  this  kind 
must  arise,  if  at  all,  from  the  payment  of  the  purchase-money, 
at  the  time  of  the  conveyance.^  If  an  express  agreement  is 
relied  upon,  it  necessarily  excludes -the  idea  of  any  trust  arising 
purely  by  implication  of  law.  Such  a  trust  will,  therefore,  be 
an  express  trust,  and  will  fall  directly  within  the  Statute  of 
Frauds.'*    But  where  funds  are  furnished  to  the  agent,  the  mere 


1  Bartlett  v.  Pickersgill,  1  Eden, 
515;  1  Cox,  15;  James  r.  Smith  [1891], 
1  Ch.  384;  Dorsey  v.  Clarke,  4  Har.  & 
J.  557;  Jackman  v.  Ringland,  4  W.  & 
S.  149;  Fox  v.  Heffner,  1  Id.  372; 
Sample  v.  Coulson,  9  Id.  62;  Robert- 
son V.  Robertson,  9  Watts,  42;  Lloyd 
V.  Lynch,  28  Pa.  419;  O'Hara  v. 
Dilworth,  72  Id.  403;  Dougan  v. 
Bemis,  95  Minn.  220;  Schrager  v. 
Cool,  221  Pa.  622;  Hill  on  Trustee-s 
96;  Perry  on  Trusts,  §  135;  Sug.  V. 

6  P.  703.  See  also  Taliaferro  v. 
Taliaferro,  6  Ala.  404;  Irwin  v.  Ivers, 

7  Ind.  308;  Minot  v.  Mitchell,  30  Id. 
228;  Kisler  v.  Kisler,  2  Watts,  323; 
Skillman  v.  Skillman,  2  McCart.  478; 
Homer  v.  Homer,  107  Mass.  82.  In 
Heard  v.  Pilley,  L.  R.  4  Ch.  548,  some 
doubts  are  expressed  as  to  the  cor- 
rectness of  the  decision  in  Bartlett  v. 
Pickersgill,  but  see  James  v.  Smith 
[1891],  1  Ch.  384.  In  Follansbe  v. 
Kilbreth,  17  111.  522;  Morris  v.  Reigel, 
19  S.  D.  26;  Hidden  v.  Jordan,  21 
Cal.  92,  and  Chastain  v.  Smith,  30 
Ga.  96;  Johnson  v.  Hayward,  74  Neb. 
157,  it  was  held  that  the  trust  could 
be  enforced.  See  Bryan  v.  Mc- 
Naughton,  38  Kan.  98;  Vallette  v. 


Tedens,    122   111.   607;   and   Camden 
V.  Dewing,  47  W.  Va.  310. 

2  Green  v.  Drummond,  31  Md.  71; 
Dollar  Savings  Bank  v.  Bennett,  76 
Pa.  402;  McCloskey  v.  McCloskey,  205 
Pa.  491 ;  Walker  v.  Brungard,  13  Sm. 
&  Marsh.  725,  765;  Hackney  v.  Butts, 
41  Ark.  393;  Acker  v.  Priest,  92  Iowa, 
610;  Furber  i'.  Page,  143  111.  622; 
Jacksonville  Nat.  Bank  v.  Beesley, 
159  Id.  120;  Woods  v.  Ward,  48  W. 
Va.  652;  Lyons  v.  Bass,  108  Ga.  573; 
Whiting  V.  Dyer,  21  R.  I.  278;  Oden 
V.  Lockwood,  136  Ala.  514;  Markham 
V.  Katzenstein,  209  111.  607;  Willis  v. 
Robertson,  121  la.  380;  Bryan  v. 
Douds,  213  Pa.  221;  Norton  v.  Brink, 
75  Neb.  575. 

3  See  Gerry  v.  Stimson,  60  Me.  189, 
and  Roberts  v.  Ware,  40  Cal.  637; 
Fessenden  v.  Taft,  65  N.  H.  39;  Sise- 
more  v.  Pelton,  17  Or.  546;  Beecher 
V.  Wilson  &  Co.,  84  Va.  813;  Lazarus 
V.  Lazarus,  12  Hawaii,  369;  Marie  M. 
E.  Church  v.  Trinity  M.  E.  Church, 
205  111.  601. 

*  Lead.  Cas.  Eq.  216  (4th  Eng.  ed.); 
Gibson  v.  Foote,  40  Miss.  792;  Shel- 
don V.  Harding,  44  111.  68;  Lowry  v. 
McGee,  3  Head,  274;  Snyder  v.  Wol- 


138 


IMPLIED   TRUSTS. 


[part  I. 


fact  that  they  cannot  be  traced  distinctly  into  the  land  will  not 
prevent  a  trust  from  resulting.'  It  has,  moreover,  been  recently 
decided  that  where  there  is  fraud  a  trust  may  be  insisted  upon, 
although  the  funds  may  not  be  those  of  the  party  who  asserts 
the  trust.^ 


81.  Reqiiisiten  to  such  a  trust. 

The  person  in  whose  favor  a  trust  is  claimed  to  result  must 
pay  the  ]3urchase-money  o.s  his  own;  if  he  merely  advances  it  as 
a  loan,  no  trust  will  result.'"* 

If  the  purchase-money  is  paid  by  several,  and  the  title  taken 
in  the  name  of  one,  a  trust  will  result  to  the  others  in  propor- 
tion to  the  amount  paid  by  each."*  But  to  create  a  resulting 
trust  in  such  a  case,  the  payment  must  be  of  sotne  definite  'part 
of  the  purchase-money .•"•     In  some  cases  it  has  been  held  that 


ford,  33  Minn.  175;  Farnham  v. 
Clements,  51  Me.  426;  though  see 
Harrold  r.  Lane,  53  Pa.  268;  Cohn 
V.  Chapman,  Phil.  Eq.  (N.  C.)  92; 
Hall  c.  Congdon,  56  X.  H.  279,  and 
Bernard  v.  Bougard,  Harring.  C-h. 
143;  Brotherton  i\  Weathersby,  73 
Tex.  471 ;  Gaines  v.  Summers,  50  Ark. 
322;  Robbins  v.  Kimball,  55  Id.  414; 
Pruitt  r.  Pruitt,  57  8.  C.  155;  Nagen- 
ga.st  V.  Alz,  93  Md.  522. 

'See  Frank's  Appeal,  59  Pa.  194; 
Sanfoss  v.  Jones,  35  Cal.  422;  Malloy 
^K  Malloy,  5  Bush,  465. 

-'  Hoehefoucauld  v.  Boustead, 
[1897],  1  Ch.  206,  where  Bartlett 
V.  Pickersgill  is,  on  that  point,  over- 
ruled. See,  also,  Kennedy  v.  Mc- 
Clo.skey,  170  Pa.  354. 

3  Bartlett  v.  Pickersgill  {supra) ; 
.\veling  ('.  Knipe,  19  Ves.  445; 
Wheeler  ?■.  Kirtland,  23  N.  J.  Eq. 
22;  .Milliken  r.  Ham.  36  Ind.  166; 
Six  r.  Shaner,  2(1  Md.  444;  (iihson  r. 
Foote,  40  Mi.ss.  78S;  Torrey  (".  Came- 
ron, 73  Tex.  583;  Beecher  r.  Wilson 
&  Co.,  84  Va.  813;  Hodges  v.  Verner, 
100  Ala.  612.  When  a  purchase  is 
made  on  the  credit  of  two,  and  the 
money  is  paid  by  one  only,  tlu  re  will 
be    no    resulting    trust.      Brooks    i\ 


Fowle,  14  N.  H.  248;  Walsh  v.  Mc- 
Bride,  72  Md.  45;  Johnston  v.  Coney, 
120  Ga.  776. 

i  Botsford  V.  Burr,  2  Johns.  Ch. 
410;  Union  Coll.  v.  Wheeler,  59  Barb. 
585;  Pierce  v.  Pierce,  7  B.  Mon.  433; 
Honore  v.  Hutchings,  8  Bush,  693; 
Shoemaker  v.  Smith,  11  Hump.  81; 
Purdy  V.  Purdy,  3  Md.  Ch.  (Johns.) 
547;  Seaman  r.  Cook,  14  111.  501;  La- 
tham V.  Henderson,  47  Id.  185;  Smith 
V.  Wright,  49  111.  403;  Morey  v.  Her- 
rick,  18  Pa.  129;  Case  v.  Codding,  38 
Cal.  193;  Faylor  v.  Faylor,  136  Cal. 
92;  Heiskell  v.  Trout,  31  W.  Va.  810; 
Crowley  v.  Crowley,  72  N.  H.  241; 
See,  also,  Anthe  v.  Heide,  85  Ala.  236; 
Kelly  V.  Kelly,  126  111.  550;  Puckett 
V.  Benjamin,  21  Or.  370;  Hughes  v. 
White,  117  Ind.  470;  Warren  v.  Ty- 
nan, 54  N.  J.  Eq.  402;  Sanders  v. 
Steele  et  al.,  124  Ala.  415;  Winslow 
r.  Young,  94  Me.  145;  Bible  v.  Marsh- 
all, 103  Tenn.  324;  Miller  i'.  Miller, 
99  Va.  125;  Hardware  Co.  v.  Horn, 
146  Mo.  129.  Though  a  contrary 
doctrine  seems  to  have  been  held  in 
Bernard  ?».  Bougard,  Harring.  Ch. 
143,  and  Coppage  r.  Barnett,  34 
Miss.  621. 

5  Baker  r.  Vining,  30  Me.  127;  Dud- 


CH.  III.J 


IMPLIED   TRUSTS. 


139 


where  there  is  no  evidence  as  to  the  amount  advanced  by  each 
party,  the  presumption  will  arise  that  they  have  furnished  the 
purchase-money  in  equal  proportions.^  In  England  the  presump- 
tion seems  to  be  that  when  money  is  advanced  in  ecjual  propor- 
tions, a  joint  tenancy  is  supposed  to  have  been  contemplated 
with  equal  chance  of  survivorship  to  all;  but  as  survivorship  has 
been  removed  as  an  incident  to  joint  tenancy  in  most  of  the 
states  of  the  Union  such  a  presumption  would  not  probably 
arise  in  America.^ 

It  is  said  in  Sugden  on  Vendors,  that  where  two  agree  to 
buy  land,  and  the  title  is  taken  in  the  name  of  both,  but  one 
pays  the  whole  consideration,  no  trust  will  result  in  his  favor, 
but  he  will  only  have  a  right  of  contribution.^ 

It  is  not  necessary  that  the  consideration  which  moves  from 
the  cestui  que  trust  should  be  money;  it  may  consist  of  anything 
of  value ;  and  a  trust  will  be  decreed  in  favor  of  him  who  is  the 
source  of  the  consideration,  whether  it  be  lands,  goods,  money, 
securities,  or  credit."* 

82.  Statute  of  Frauds. 

The  language  of  the  Statute  of  Frauds  upon  the  subject  of 
resulting  trusts  is  that,  "where  any  conveyance  shall  be  made 
of  any  lands  or  tenements,  by  which  a  trust  or  confidence  shall 
or  may  arise  or  result  by  implication  or  construction  of  law,  or 
be  transferred  or  extinguished  by  act  or  operation  of  law,  then 
and  in  every  such  case,  such  trust  or  confidence  shall  be  of  the  like 
force  and  effect  as  the  same  would  have  been  if  the  statute  had 


ley  V.   Bachelder,   53   Id.   408;   Mc- 
Gowan  v.  McGowan,   14  Gray,   119 
Wheeler  v.  Kirtland,   23  N.  J.   Eq 
22;  Sayre  v.  Townsends,   15  Wend 
647;  Reynolds  v.  Morris,  17  Ohio  St 
510;  O'Donnell  v.  White,  18  R.  I.  659 
Lazarus  i;.  Lazarus,  12  Hawaii,  369; 
Gulp  V.  Price,  107  Iowa,  133;  Marie 
M.  E.  Church  v.  Trinity  M.  E.  Church, 
205  111.  134;  Onasch  v.  Zinkel,  213 
111.  119;  Skehill  v.  Abbott,  184  Mass. 
145;    Pickens   v.  Wood,    57  W.  Va. 
480. 

»  Shoemaker  v.  Smith,  11  Humph. 
81;  Edwards  v.  Edwards,  39  Pa.  386. 

2  Hill  on  Trustees,  93;  Adams,  Eq. 
34.     In  Crawford  v.  Jones,  163  Mo. 


577,  it  was  held  that  instead  of  a  de- 
cree that  a  resulting  tru.st  will  ari.se  in 
proportion  to  the  amount  paid,  the 
chancellor  may  decree  a  lien  on  the 
whole  for  the  amount. 

3  Sugden  V.  and  P.  700  (8th  Am. 
ed.).  But  see  Ward  v.  Ward,  59 
Conn.  188. 

*  Blodgett  V.  Hildreth,  103  Mass 
484;  Clark  r.  Clark,  43  Vt.  685 
Blauvelt  v.  Ackerman,  20  N.  J.  Eq 
141;  Peabody  v.  Tarbell,  2  Cush.  226 
1  Lead.  Gas.  Eq.  3.34  (4th  Am.  ed.) 
See  Sullivan  v.  Sullivan,  86  Tenn.  376 
"A  bond  or  mortgage  may  be  given 
for  the  deed."  Casciola  v.  Donatelli, 
218  Pa.  624. 


140 


IMPLIED   TRUSTS. 


[part  I. 


»ot  been  made."  ^  It  will  be  observed  that  the  statute  speaks 
of  "any  conveyance  ...  by  which  a  trust  shall  arise."  It  has, 
accordingly,  been  held  that  a  resulting  trust  cannot  arise  unless 
some  transmission  of  title  has  taken  place.  Thus  in  a  Minne- 
sota case,  where  the  statute  abolishing  resulting  trusts,  never- 
theless preserves  them  in  favor  of  the  existing  creditors  of  the 
person  paying  the  consideration,  it  was  held  that  no  trust  would 
result  where  there  has  been  no  actual  conveyance  by  the  person 
from  whom  the  debtor  has  purchased. - 

It  is  also  essential  to  a  resulting  trust  that  the  money  should 
be  paid  at  the  time  of  the  purchase;  a  subsequent  payment 
cannot  raise  a  trust.^  This  principle,  however,  is  not  applicable 
to  resulting  trusts  of  the  second  kind,  i.  e.,  where  a  tmstee  buys 
property  in  his  own  name,  but  with  trust  funds."* 

Resulting  trusts  will  not  arise  against  the  positive  provisions 
of  a  statute,  or  in  contravention  of  public  poUcy.  Thus,  it 
has  been  decided  under  the  English  registration  acts,  that  the 
doctrine  is  not  applicable  to  the  case  of  a  vessel  pui-chased  and 
paid  for  by  one  man,  but  registered  in  the  name  of  another.^ 
And  so,  too,  a  resulting  trust  cannot  be  enforced  by  an  alien  in 


iStat.29Car.  II.,c.  3,  §  8. 

2  Durfee  v.  Pavitt,  14  Minn.  430. 
See,  also,  Jackson  v.  Morse,  16  Johns. 
R.  197;  Green  v.  Drummond,  31  Md. 
81. 

3  Foster  v.  The  Trustees,  3  Ala.  302; 
Long  V.  King,  117  Id.  423;  Mahorner 
?'.  Harrison,  13  Sm.  &  Marsh.  53; 
Barnard  v.  Jewett,  97  Mass.  87;  Cut- 
ler )'.  Tuttle,  19  X.  J.  Eq.  549;  Tun- 
nard  r.  Littell,  23  Id.  267;  Capers  v. 
McCaa,  41  Miss.  488;  Frederick  v. 
Haas,  5  Xev.  389;  Botsford  v.  Burr,  2 
Johns.  Ch.  408;  Nixon's  .\ppeal  63 
Pa.  282;  Purdy  v.  Purdy,  3  Md.  Ch. 
547;  Latham  v.  Henderson,  47  111.  185; 
Rogers  v.  Murray,  3  Paige,  390;  Perry 
on  Trusts,  §  133;  Smith  v.  Turley,  32 
W.  Va.  14;  First  National  Bank  v. 
Campbell,  2  Colo.  App.  271.  "A 
resulting  trust  must  arise  at  the 
instant  the  deed  is  taken  and  the 
title  is  vested  in  the  grantee;  and 
the  situation  when  it  passes  is  to 
be  looked  to,  and  not  the  situation 


preceding  or  following  that  time" 
(quoting  McGill,  Chan.).  Whitley  v. 
Ogle,  47  N.  J.  Eq.  67.  And  see  Thum 
V.  Wolstenholme,  21  Utah,  446.  But 
if  pavTnent  is  assumed  at  time  of  pur- 
chase, and  is  subsequently  made  in 
pursuance  of  such  contemporaneous 
assumption,  a  resulting  trust  will 
arise.  Williams  v.  W'ager,  64  Vt.  326. 
See,  also,  Seller  v.  Mohn,  37  W.  Va. 
507.  A  resulting  trust  in  land  can 
only  be  declared  when  the  legal  title 
has  passed  to  the  party  against 
whom  the  trust  is  sought  to  be  de- 
clared, but  an  equitable  title  to  land 
which  upon  pajTnent  of  a  balance 
due  on  the  purchase  price  will  ripen 
into  a  legal  title  is  property,  a  re- 
sulting trust  in  which  may  be  de- 
clared and  enforced  by  a  court  of 
equity.  Lynch  v.  Herrig,  32  Mont. 
267. 

*  Haney  v.  Legg,  129  Ala.  619. 

5  Hill  on  Trustees,  93,  94.  See 
Hoar  V.  Hoar,  48  Hun,  314. 


CH.  III.] 


IMPLIED   TRUSTS. 


141 


opposition  to  statutes  forbidding  or  circumscribing  his  right  to 
hold  property.' 

And  if  the  title  to  property  is  taken  in  the  name  of  a  third 
party  for  the  purpose  of  defrauding  the  creditor  of  the  party 
who  pays  the  purchase-money,  equity  will  not  assist  him  in  en- 
forcing a  resulting  trust,  for  to  do  so  would  be  to  aid  a  fraud.- 

The  interest  of  the  real  purchaser,  however,  will  be  subject 
to  the  claims  of  his  creditors.' 

83.  Parol  evidence  admissible. 

It  must  be  remembered  that  the  trusts  now  under  consid- 
eration rest  upon  presumption  merely,  and  that  this  presumption 
is  not  one  juris  et  de  jure,  but  of  fact  merely,  and  open  to  re- 
buttal. All  the  facts  and  circumstances  attendant  upon  the 
transaction  may  be  proved  for  the  purpose  of  showing  what  the 
intention  of  the  parties  really  was;^  as  that  the  nominal  pur- 
chaser was  the  real  beneficiary,  that  the  pretended  owner  was 
of  such  mean  circumstances  as  to  make  it  impossible  for  him 
to  have  been  the  purchaser,^  that  the  purchase-money  was  ad- 
vanced by  the  party  paying  it  as  a  loan  to  the  party  in  whose 
name  the  legal  title  was  taken,  and  not  for  the  purpose  of  ac- 
quiring the  ownership  himself,  and  the  like.  Hence,  it  is  well 
settled  that  parol  evidence  is  admissible  both  to  create  and  to 
rebut  the  presumption  of  a  resulting  trust.®    Parol  evidence  is 


1  Leggett  r.  Dubois,  5  Paige,  114; 
Hubbard  v.  Goodwin,  3  Leigh,  492; 
Perry  on  Trusts,  §  131;  Sugden  V. 
and  P.  701 ;  Zundell  v.  Gess,  73  Tex. 
144. 

2  Ford  r.  Lewis,  10  B.  Mon.  127; 
Proseus  r.  Mclntyre,  5  Barb.  425; 
Baldwin  v.  Campfield,  4  Hals.  Ch. 
891;  Sell  v.  West,  125  Mo.  621;  Hard- 
ware Co.  V.  Horn,  146  Id.  129. 

3  Guthrie  v.  Gardner,  19  Wend.  414; 
Kimmcl  v.  McRight,  2  Pa.  38;  Hill  on 
Trustees,  164  (4th  Am.  ed.);  Kline  r. 
McDonnell,  62  Hun,  177. 

*  Byers  v.  Danley,  2  Ark.  88;  Zim- 
merman V.  Barber,  176  Pa.  1 ;  Harris 
V.  Elliott,  45  W.  Va.  245;  Lutz  v. 
Matthews,  37  Pa.  Sup.  354. 

5  Willis  V.  Willis,  2  Atk.  71;  Sugd. 
V.  and  P.  702  (8th  Am.  ed.);  Farrell 


V.  Lloyd,  69  Pa.  247;  Bush  v.  Stanley, 
122  111.  406;  though  see  Balbec  v. 
Donaldson,  2  Gr.  Cas.  459;  Kline  r. 
Ragland,  47  Ark.  Ill;  Salisbury  v. 
Clarke,  61  Vt.  453. 

8  Boyd  r.  McLean,  1  Johns.  Ch. 
582;  Kendall  v.  Mann,  11  Allen,  15; 
Blodgett  V.  Hildreth,  103  Mass.  487; 
Cooley  V.  Cooley,  172  Id.  476;  De- 
Peyster  r.  Gould,  3  \.  J.  Eq.  480; 
Swinburne  i-.  Swinburne,  28  X.  Y. 
568;  Jackman  v.  Ringland,  4  AV.  &  S. 
149;  Myers  r.  Myers,  25  Pa.  100; 
Livermore  v.  Aldrich,  5  Cush.  431; 
IloUis  V.  Hayes,  1  Md.  Ch.  479;  Dry- 
den  V.  Hanway,  31  Md.  254;  Bank 
of  United  States  v.  Carrington,  7 
Leigh,  566;  McGuire  v.  McGowen,  4 
Dess.  486;  Linnel  v.  Hudson,  59  S.  C. 
283;    Letcher    v.    Letcher,    4    J.    .1. 


142 


IMPLIED   TRUSTS. 


[part  I. 


admissible  to  establish  a  trust  in  contradiction  of  the  terms  of 
a  deed ;  *  and  even  (it  is  now  held)  after  the  death  of  the  nomi- 
nal purchaser.^ 

Parol  evidence  is  also  admissible  against  the  answer  of  the 
nominal  purchaser,  although  the  testimony  to  establish  a  trust 
in  such  a  case  must  be  very  strong.^ 

To  establish  a  trust  by  parol,  the  evidence  must  be  full,  clear, 
and  convincing;  "*  though  the  application  of  this  rule  will,  of 
course,  be  modified  by  circumstances.^ 

Where  the  purchase-money  is  paid  by  one  man,  and  the  title 
taken  in  the  name  of  another  for  fraudulent  purposes,  e.  g.,  in 


Marsh.  593;  Faris  r.  Dunn,  7  Bush, 
276;  Creed  ?•.  Lancaster  Bank,  1 
Ohio  St.  1 ;  Lewis  v.  White,  16  Id.  444; 
Elliott  V.  Armstrong,  2  Blackf.  198; 
Sandford  ?'.  Weeden,  2  Heisk.  71. 
See  Shelby  v.  Tardy,  84  Ala.  .'127; 
Hudson  V.  White,  17  R.  I.  519;  Booth 
r.  Lenox,  45  Fla.  191. 

1  Buck  r.  Pike,  2  Fairfield,  9;  Page 
r.  Page,  8  N.  IL  187;  Pinney  v.  Fel- 
lows, 15  Vt.  525;  Pcabody  r.  Tarbell, 
2  Cush.  232;  note  to  Dyer  v.  Dyer, 
1  Lead.  Cas.  Eq.  *213;  Neyland  r. 
Bendy,  69  Tex.  711. 

2  Boyd  V.  McLean,  1  Johns.  Ch. 
582;  McCammon  v.  Pettitt,  3  Sneed, 
242;  Fausler  v.  Jones,  7  Ind.  277; 
Williams  v.  HoUingsworth,  1  Strob. 
Eq.  103;  Perry  on  Trusts,  §  138. 

3  Boyd  V.   McLean,    1   Johns.   Ch 
582;    Page    v.    Page,    8    N.    H.    187 
Moore  v.  Moore,  38  Id.  .382;  Elliott  v 
.\rmstrong,  2  Blackf.  199;  Jenison  v 
Graves,  2  Id.  441 ;  Blair  v.  Bass,  4  Id 
540;  Snelling  v.  Utterback,   1   Bibb, 
609;  Larkins?'.  Rhodes,  5  Porter,  196; 
Enos  V.  Hunter,  4  Gilman,  21 1 ;  Smith 
V.  Sackett,  5  Id.  544;  Hill  on  Trustees 
(4th  ed.),  1.33. 

*  Baker  ?•.  Vining,  30  Me.  127;  Boyd 
I'.  McLean,  1  Johns.  Ch.  582;  Lloyd  r. 
Lynch,  28  Pa.  419;  Bennett  v.  Ful- 
mer,  49  Id.  155;  Farrell  r.  Lloyd,  69 
Id.  247;  Beringer  v.  Lutz,  179  Id.  1; 
dinger  v.  Shultz,  183  Id.  469;  Bowen 


V.  Haupt,  192  Id.  406;  Fidelity,  etc., 
Co.   V.   Moore,    194   Id.  617;   Haupt 
V.   Unger,   222  Pa.  439;   Faringer  v. 
Ramsay,  2  Md.  365;  Jenison  v.  Graves, 
2   Blackf.  440;   Holder  v.  Nunnelly, 
2  Cold.  288;  White  v.  Sheldon,  4  Nev. 
280;   Frederick   ?•.   Haas,   5  Id.  389; 
Woodside   v.    Ilewel,    109   Cal.   481; 
Greer   v.    Baughman,    13    Md.    257; 
Phelps  V.  Seely,  22  (Jratt.  589;  Ken- 
dall r.  Mann,  11  Allen,  15;  Olive  v. 
Dougherty,     3     Greene     (la.),     371 
Miller   r.   Stokely,    5   Ohio  St.    194 
Tunnard  r.  Littell,  23  N.  J.  Eq.  267 
Parmlee     r.     Sloan,     37     Ind.     482 
Lofton  V.  Sterrett,  23  Fla.  565;  Smith 
V.  Turley,  32  W.  Va.  14;  Wacker  v. 
Wacker,  147  Mo.  246;  Oregon  Lum- 
ber Co.  V.  Jones,   36   Oreg.  80;   Rice 
r'.  Rigby,  7  Idaho,  115;  McMurray  v. 
McMurray,    180    Mo.    526;    Reed    v. 
Sperry,  193  Mo.  167;  Doane  v.  Dun- 
ham, 64  Neb.  135;  Carter  v.  Carter, 
14  N.  D.  66;  Tillar  v.  Henry,  75  Ark. 
446;  Johns  v.  Carroll,  107  Md.  437. 
Equity  requires  that  parol  cA'idence 
to  ingraft  an  express  trust  in  lands 
upon  a  deed  absolute  shall  clearly 
and    convincingly    show    that    con- 
temporaneously  with   the   execution 
of  the  deed  the  terms  of  the  trust 
were  declared  and   the   beneficiaries 
designated.     Boughman     v.    Bough- 
man,  69  Ohio  St.   273. 
5  Snell  V.  Elan,  2  Heisk.  82. 


CH.  III.] 


IMPLIED   TRUSTS. 


143 


order  to  defeat  or  delay  creditors,  equity  (as  already  stated)  will 
not  assist  the  perpetrator  of  the  fraud,  and  consequently  will 
decline  to  enforce  the  trust  which  would  otherwise  result,  were 
the  transaction  a  bona  fide  one,  for  his  benefit.^  This  is  only  the 
application  of  the  maxim  that  he  who  comes  into  equity  must 
do  so  with  clean  hands;  as  will  be  found  more  fully  explained 
hereafter  under  the  head  of  Frauds.^ 


84.  Advancements. 

An  exception  to  the  general  doctrine  of  resulting  trusts  oc- 
curs in  the  case  of  advancements. 

Advancement  is  a  term  which  has,  in  law,  several  meanings. 
Its  signification  in  the  present  connection  is  a  gift  from  a  parent 
to  a  child,  which  is  supposed  to  be  intended  when  the  purchase- 
money  is  paid  by  the  parent,  and  the  conveyance  is  taken  in 
the  name  of  the  child.  The  ordinary  presumption  of  a  resulting 
trust,  already  described,  is  in  such  a  case  rebutted  by  the  sup- 
posed intention  to  benefit  the  child;  and  instead  of  the  latter 
holding  as  trustee  for  the  parent,  he  will  be  construed  to  take 
beneficially  by  advancement.^  Dyer  v.  Dyer,  already  cited,"*  is 
an  authority  upon  this  particular  branch  of  the  law  of  resulting 
trusts.  In  that  case  copyhold  premises  were  granted  to  Simon 
Dyer,  and  Mary  his  wife,  and  his  son  William,  to  take  in  suc- 
cession for  their  lives,  and  to  the  longest  liver  of  them,  the  pur- 
chase-money having  been  paid  by  the  father.  The  wife  died, 
and  then  the  father,  leaving  surviving  him  William  and  another 
son,  to  whom  he  had  devised  the  copyhold  estate.  Upon  a  bill 
filed  by  this  younger  son  against  his  brother  William,  it  was 
held  that  the  latter  could  not  be  treated  as  a  trustee  of  the  legal 
title  for  the  benefit  of  the  father's  devisee,  but  that  he  took  bene- 
ficially by  way  of  advancement ;  and  the  bill  was  dismissed. 

The  doctrine  of  advancement  is  firmly  established   in   the 


1  Baldwin  v.  Campfield,  4  Halst .  Ch. 
891 ;  Vanzant  v.  Davies,  6  Ohio  St.  52; 
Murphy  v.  Hubert,  16  Pa.  50;  Brant- 
Icy  V.  West,  27  Ala.  542.  See,  also, 
Leggett  V.  Dubois,  5  Paige,  114; 
Philips  V.  Crammond,  2  Wash.  C.  C. 
441;  Alsworth  v.  Cordtz,  31  Miss. 
32. 

2  Post,  §  208,  and  authorities  cited. 

3  As  the  general  doctrine  of  result- 
ing trusts  is  analogous  to  the  com- 


mon-law rule  that  where  there  is  a 
feoffment  without  consideration  the 
use  results  to  the  feoffor,  so  the  ex- 
ception as  to  advancements,  now 
under  consideration,  is  in  accordance 
with  the  legal  principle  that  where 
there  is  a  feoffment  from  a  father  to 
a  son,  the  consideration  of  blood 
would  settle  the  use  on  the  son. 
Grey  v.  Grey,  2  Swans.  598. 
*  Ante,  p.  135,  n.  2. 


144 


IMPLIED    TRUSTS. 


[part 


United  States  as  well  as  in  England ;  and  the  general  rule  may 
be  stated  to  be  that  a  purchase  in  the  name  of  a  child  ^vill  be 
regarded  prima  facie  as  an  advancement,  and  not  as  a  resulting 
trust  for  the  father.^  The  rule  applies  to  other  relations  than 
those  of  father  and  child.  A  purchase  by  any  one  in  the  name 
of  another  to  whom  the  purchaser  stands  in  loco  parentis  will  l)e 
treated  as  an  advancement.  Thus  the  rule  has  been  held  to  ap- 
ply to  grandfather  and  grandchild;  ^  to  mother  and  daughter 
or  son ;  ^  to  husband  and  wife ;  '*  to  a  purchase  in  the  name  of  a 
son-in-law :  ^  and,  in  short,  to  a  purchase  in  the  name  of  any  one 
to  whom  the  i)arty  paying  the  consideration-money  stands  in  loco 
parentis.^  A  purchase  in  the  name  of  a  brother  will  not  be  con- 
sidered as  an  advancement,^  unless  the  purchaser  stands  in  loco 
parentis  towards  his  brother.*  And  where  land  is  purchased 
with  the  monev  of  a  wife  and  title  taken  in  the  name  of  the 


1  Page  r.  Page,  8  X.  H.  187; 
Dennison  r.  Goehring,  7  Pa.  180, 
note;  Wheeler  r.  Kidder,  105  Id. 
27:5;  Kern  r.  Howell,  180  Id.  315; 
Taylor  r.  James,  4  Dess.  1 ;  Douglass 
r.  Brice,  4  Rich.  Eq.  322;  Astreen  r. 
Flanagan,  3  Edw.  C'h.  279;  Partridge 
V.  Havens,  10  Paige  Ch.  618;  Wel- 
ton  V.  Divine,  20  Barb.  9;  Doyle  v. 
Sleeper,  1  Dana,  536;  Taylor  v.  Tay- 
lor, 4  Ciilm.  .303;  Cartwright  r.  Wise, 
14  111.  417;  Shepherd  r.  White,  10 
Tex.  721;  Alexander  v.  Warram,  17 
Mo.  236;,  Baker  r.  Leathers,  3  Ind. 
558;  Culp  r.  Price,  107  Iowa,  133; 
Long  r.  King,  117  Ala.  423;  Hallen- 
back  r.  Rogers,  57  N.  J.  Eq.  199; 
Spitler  r.  Kaeding,  133  Cal.  500; 
Goodwin  r.  Parnell,  69  Ark.  629; 
Perry  on  Trusts,  §§  143  d  seq.;  Hill 
on  Trustees,  97  et  seq.;  Hoon  v.  Hoon, 
126  la.  391. 

2  Ebrand  r.  Dancer,  1  Coll.  Ch. 
265  n. 

3  Murphy  v.  Nathans,  46  Pa.  508; 
Euans  r.  Curtis,  190  111.  197;  Sayre 
V.  Hughes,  L.  R.  5  Eq.  376;  though 
see  In  re  de  Visme,  2  De  G.  J.,  &  Sm. 
17;  Bennet  v.  Bennct,  L.  R.  10  Ch.  D. 
474  {per  Sir  G.  Jessel);  Cooley  v. 
Cooley,  172  Mass.  476. 


■*  Guthrie  v.  Gardner,  19  Wend.  414; 
Whitten  v.  Whitten,  3  Cush.  194; 
Viers  r.  Viers,  175  Mo.  444;  Kline  v. 
Ragland,  47  Ark.  Ill;  Whitley  v. 
Ogle,  47  N.  J.  Eq.  67;  Johnson 
r.  Johnson,  96  Md.  144;  Fatheree  v. 
Fletcher,  31  Miss.  265;  Cotton  v. 
Woods,  25  la.  43;  Kline's  Appeal,  39 
Pa.  463;  Light  v.  Zeller,  144  Id.  582; 
Davis  V.  Davis,  18  Col.  66;  Long  v. 
McKay,  84  Me.  199;  Deck  v.  Tabler, 
41  W.  Va.  332;  Curd  v.  Brown,  148 
Mo.  82;  Woodward  v.  Woodward/  148 
Id.  241;  Hamilton  r.  Hubbard,  134 
Cal.  603;  Crumr^e  r.  Crumrine,  50 
W.  Va.  226;  Rowe  v.  Johnson,  33 
Col.  469;  Van  Etten  r.  Bank,  79 
Neb.  6.32;  Deuter  v.  Deuter,  214  111. 
308. 

5  Baker  ?•.  Leathers,  3  Ind.  558; 
see  Batstone  v.  Salter,  L.  R.  10  Ch. 
431;  Richardson  ?'.  Seevers,  84  Va. 
259. 

6  See  Jackson  v.  Feller,  2  Wend. 
465;  Roberts's  Appeal,  85  Pa.  84; 
Harris  r.  Elliott,  45  W.  Va.  245. 

7  Edwards  v.  Edwards,  39  Pa. 
377. 

8  Forrest  v.  Forrest,  34  L.  J.  Ch. 
428. 


CH.  III.] 


IMPLIED    TRUSTS. 


145 


husband,  there  will  be  no  presumption  of  a  gift  to  the  husband. 
A  resulting  trust  in  favor  of  the  wife  will  be  implied.' 

It  seems  to  be  doubtful  whethei"  a  purchase  in  the  name  of  an 
illegitimate  child  is  to  be  treated  as  an  advancement;  although 
the  weight  of  authority  is  in  favor  of  so  treating  it.^ 

Where  the  money  is  advanced  by  a  son  and  the  title  taken  in 
the  name  of  the  father,  the  presumption  will  be  in  favor  of  a 
resulting  trust,  and  not  an  advancement,^  and  where  land 
was  conveyed  to  a  husband,  the  father  of  the  wife  paying  the 
purchase-money  and  declaring  it  to  be  the  advancement,  it  was 
held  that  a  trust  resulted  in  favor  of  the  wife.^ 

Whether  a  purchase  made  by  a  father  in  the  joint  names  of 
himself  and  son  will  be  considered  as  an  advancement  has  been 
a  doubtful  question ;  but  the  more  recent  authorities  are  in  favor 
of  considering  it  an  advancement.^ 

The  presumption  of  advancement  being,  as  Chief  Justice 
I^yre  said  in  Dyer  v.  Dyer,  a  mere  circumstance  of  evidence,  may 
be  rebutted  by  other  evidence  or  other  presumptions  tending 
to  show  an  intention  that  the  child  was  to  hold  as  a  trustee.^ 
Thus  the  relation  of  solicitor  and  client  has  been  held  to  prevent 
the  presumption  of  an  advancement  which  would  otherwise  have 
arisen,^  and  where  the  deed  is  taken  in  the  name  of  a  wife  for  the 


1  Kline  v.  Ragland,  47  Ark.  115; 
Cunningham  ?;.  Bell,  83  N.  C.  328; 
Thomas  ?'.  Btandiford,  49  Md.  181; 
Loften  V.  Witboard,  92  111.  461;  Moss 
V.  Moss,  9'5  Id.  449;  Catherwood  v. 
Watson,  65  Ind.  576;  Berry  r.  Wied- 
man,  40  W.  Va.  36;  Carter  v.  Becker, 
69  Kan.  524.  And  see  Corr's  Appeal, 
62  Conn.  403,  where  a  trust  was  en- 
forced against  the  estate  of  the  wife 
in  favor  of  the  husband. 

2  Beckford  r.  Beckford,  Lofft's 
Reps.  490;  Soar  v.  Foster,  4  K.  &  J. 
152;  Tucker  i-.  Burrow,  2  Hem.  &  M. 
515;  Elrod  v.  Cochran,  59  S.  C. 
467. 

3  Howell  V.  Howell,  2  McCart.  75; 
Champlin  v.  Champlin,   136  111.  309. 

*  Peiffer  ?'.  Lytle,  58  Pa.  386;  but 
see  Richardson  r'.  Seevers,  84  Va.  259, 
and  Wacker  v.  Wacker,  147  Mo.  246, 
where  the  evidence  was  held  insuffi- 

10 


cient  to  establish  a  resulting  trust 
for  the  daughter. 

5  Grey  v.  Grey,  2  Swanst.  599 
Williams  v.  Williams,  32  Beav.  370 
Sugd.  V.  and  P.  704  (8th  Am.  ed.) 

« Shepherd  v.  White,   10  Tex.  72 
Proseus  v.   Mclntyre,    5   Barb.   425 
Butler  V.  Insurance  Co.,  14  Ala.  777 
Cotton  V.  Woods,  25  la.  43;  Hodgson 
V.  Macy,  8  Ind.  121;  McClintock  v. 
Loisseau,   31   W.   Va.   865;   Bruce   v. 
Slemp,  82  Va.  352;  Coolej^  v.  Cooley, 
172  Mass.  476;   Bickford  v.  Est.  of 
Bickford,  68  Vt.  525;  Gulp  r.  Price, 
107  la.  133;  Brennaman  v.  Schell,  212 
III.  356;  Lahey  v.  Broderick,  72  N.  H. 
180. 

^  Garrett  v.  Wilkinson,  2  De  G.  & 
Sm.  244.  See,  also,  Wallace  v.  Bow- 
ens,  28  Vt.  638;  Dudley  v.  Bosworth, 

10  Humph.  12;  Jackson  v.  Matsdorf, 

11  John.    91;    Taylor    v.    Taylor,    4 


146 


IMPLIED   TRUSTS. 


[part  I. 


purpose  of  defrauding  the  husband's  creditors,  a  trust  will  result 
to  the  husband  so  as  to  make  the  property  liable  to  his  debts. ^ 

85.  Trusts  of  this  kind  abolished  in  certain  states. 

It  remains  to  be  noticed  that  resulting  trusts  of  the  kind  now 
under  discussion  have  been  abolished  in  certain  states  of  the 
Union  by  statute.  Such  is  the  case  in  New  York,^  iMichigan,' 
and  Wisconsin."*  So,  also,  in  Massachusetts,  Maine,  Indiana, 
Kentucky,  Kansas,  and  Minnesota.^  But  an  exception  is  made 
in  cases  where  the  title  is  taken  in  the  name  of  the  nominal  pur- 
chaser without  the  knowledge  of  the  real  purchaser.^ 

86.  Purchases  by  Trustees  with  Trust  Funds:  Following 
Trust  Funds. 

The  second  class  of  resulting  trusts  is  where  a  trustee  or  other 
fiduciary  purchases  property  with  trust  funds  and  takes  the  title 
in  his  own  name.  In  such  a  case  a  trust  will  result  by  operation 
of  law  for  the  benefit  of  the  trust  estate,  as  the  trustee  will  be 
presumed  to  have  intended  that  the  purchase  should  enure  to 
the  benefit  of  the  estate.  Trust  funds  may  in  this  way  be  fol- 
lowed into  any  property  into  which  they  have  been  invested  or 
converted  by  the  trustee;  and  this  is  constantly  done  by  the 
courts  for  the  benefit  and  redress  of  injured  cestids  que  trust- 
ent? 

The  rule  above  stated  applies  to  purchases  by  a  trustee,*  by  a 


Gilm.  303.  See,  in  this  connection, 
In  re  Whitehouse,  37  Ch.  D.  685, 
where  a  father  became,  jointly  with 
his  son,  the  maker  of  certain  promis- 
sory notes  given  in  part  pajTnent  of 
real  estate  conveyed  to  the  son,  and 
where  it  was  held  that  the  notes  un- 
paid at  the  date  of  the  father's  death 
were  not  to  be  treated  as  an  ad- 
vancement. 

1  Belford  v.  Crane,  16  N.  J.  Eq.  265; 
•post,  Part  II.,  Chap.  II. 

2  Schierloh  v.  Schierloh,  148  N.  Y. 
103. 

3Wipfler  r.  Wipfler,  153  Mich.  18. 

4  Bosworth  V.  Hopkins,  85  Wis.  50. 

s  See  Glidewell  i\  Spaufih,  26  Ind. 
319;  Toney  v.  Wondliiifi,  138  Ind. 
228;  Ruth  v.  Oberbrunner,  40  Wis. 


260;  Durfee  v.  Pavitt,  14  Minn.  424; 
Martin  7'.  Martin,  5  Bush,  47;  Collar 
r.  Collar,  86  Mich.  507. 

6  McCreary  v.  McCreary,  90  Mich. 
478;  Woerz  v.  Rademacher,  120  N.  Y. 
62. 

7  Perry  on  Trusts,  §  127;  Atkinson 
V.  Ward,  47  Ark.  533;  Third  Nat. 
Bank  of  St.  Paul  v.  Stillw.  Gas  Co., 
36  Minn.  75;  Maher  v.  Aldrich,  205 
111.  242;  Heintz  v.  Dennis,  216  111. 
487. 

sOHver  v.  Piatt,  3  How.  401; 
Harrisburg  Bank  v.  Tyler,  3  W.  & 
S.  373;  Martin  v.  Greer,  1  Geo. 
Dec.  118;  Moffit  v.  McDonald,  11 
Humph.  457;  Day  v.  R<ith,  18  N.  Y. 
448;  Lathrop  v.  Gilbert,  10  N.  J.  Eq. 
345;  Pugh  v.  Pugh,  9  Ind.  132. 


CH.  III.] 


IMPLIED   TRUSTS. 


147 


partner,*  an  agent  appointed  to  buy,^  or  trustees  of  a  corpora- 
tion,' or  an  executor  or  administrator,'*  or  a  committee  of  a  luna- 
tic,^ or  a  guardian,^  or  a  husband  purchasing  with  avails  of  his 
wife's  separate  estate,^  or  a  mortgager.*  And  the  rule  applies 
not  only  to  purchases,  but  to  deposits  of  money  in  a  bank,  to 
assignments,  to  transmissions  to  personal  representatives,  and 
to  all  cases  in  which  the  property  of  the  beneficiaries  can  be 
traced  in  spite  of  any  transmutation  of  form  or  change  of  pos- 


session. 


9 


1  Philips  V.  Crammond,  2  Wash.  C. 
C.  441;  Piatt  v.  OHver,  2  McLean, 
267;  3  How.  401;  Riddle  v.  White- 
hill,  135  U.  S.  634;  King  v.  Hamil- 
ton, 16  111.  190;  Coder  v.  Huling, 
27  Pa.  84;  Baldwin  v.  Johnson,  Saxt. 
441;  Edgar  r.  Donnally,  2  Munf.  387; 
Pugh  i\  Curric,  5  Ala.  446;  Crone  v. 
Crone,  180  111.  509. 

2  Church  V.  Sterling,  16  Conn.  388; 
Eshleman  v.  Lewis,  49  Pa.  415.  See, 
also,  Hutchinson  ?•.  Hutchinson,  4 
Des.  77;  Follansbe  v.  Kilbreth,  17  III. 
522;  Chastain  v.  Smith,  30  Ga.  96. 

3  Methodist  Church  v.  Wood,  5 
Hamm.  283;  Palmetto  Lumber  Co.  v. 
Risley,  25  S.  C.  309. 

*  Claussen  v.  La  Franz,   1   Clarke, 
226;  McCrory  v.  Foster,  Id.  271;  Wal- 
lace   V.    Duffield,    2    S.    &    R.    521 
Harper    v.    Archer,     28    Miss.    212 
PhilHps  V.   Overfield,    100   Mo.   466 
Zunkel  v.  Colson,  109  Iowa,  695. 

sReid  V.  Fitch,  11  Barb.  399. 

"  Caplinger  v.  Stokes,  Meigs,   175 
Bancroft    r.    Consen,    13    Allen,    50 
Johnson  ?•.  Doughertj^  18  N.  J.  Eq 
406;  Durling  v.  Hammar,  20  Id.-  220 
Turner  v.  Petigrew,  6  Humph.  438 
Shelton  v.  Lewis,  27  Ark.  190;  Schlae- 
fer  V.  Corson,  52  Barb.  510;  Alspaugh 
V.   Adams,    80   Ga.    345;    Hughes   r. 
White,  117  Ind.  470;  First  Nat.  Bank 
V.  Leech,  207  111.  215. 

7  Methodist  Church  v.  Jaques,  1 
Johns.  Ch.  450;  3  Id.  77;  Fillman  v. 
Divers,  31  Pa.  429;  Marsh  r.  Marsh, 
43  Ala.  677;  Click  v.  CHck,  1  Heisk. 


607;  Sandford  v.  Weeden,  2  Id.  71; 
Miller  v.  Edwards,  7  Bush,  394 ;  Resor 
V.  Resor,  9  Ind.  347;  Barron  v.  Bar- 
ron, 24  Vt.  375;  Pritchard  r.  Wal- 
lace, 4  Sneed,  405;  Wallace  r.  Mc- 
Cullough,  1  Rich.  Eq.  426;  Dickinson 
V.  Codwise,  1  Sandf.  (Ch.)  214;  Pin- 
ney  v.  Fellows,  15  Vt.  524;  Lathrop 
V.  Gilbert,  10  N.  J.  Eq.  345;  Miller  v. 
Slupsky,  158  Mo.  643;  Bible  v. 
Marshall,   103  Tenn.  324. 

8  McLarren  v.  Brewer,  51  Me.  402. 

9  See  Farmers'  and  Mechanics' 
Bank  v.  King,  57  Pa.  202;  Milligan's 
Appeal,  82  Id.  .389;  Moses  v.  Mur- 
gatroyd,  1  Johns.  Ch.  128;  Kirk- 
patrick  v.  McDonald,  11  Pa.  387; 
Philips  V.  Crammond,  2  W.  C.  C.  R. 
441;  Pierce  v.  M'Kcchan.  3  W.  &  S. 
280;  Third  Nat.  Bk.  of  St.  Paul  v. 
Stillwater  Gas  Co.,  36  Minn.  75; 
Taylor  r.  Plumer,  3  M.  &  S.  562,  574; 
Pennell  v.  Deffell,  4  De  G.,  M.  &  G. 
389-;  Hancock  r.  Smith,  41  Ch.  D.  456; 
Story's  Eq.  §§  1258-1359;  Sheffer  v. 
Montgomery,  65  Pa.  328;  First  Na- 
tional Bank  v.  Bache,  71  Id.  213; 
Moore  v.  Williams,  62  Hun,  55;  Union 
Nat.  Bank  v.  Goetz,  138  111.  127; 
Ennor  r.  Hodson,  134  Id.  32;  Carley 
V.  Graves,  85  Mich.  483;  Farmers'  and 
Traders'  Bank  v.  Milling  Co.,  1  So. 
Dak.  388;  State  v.  State  Bank,  42 
Neb.  896;  Cushman  v.  Goodwin,  95 
Me.  353;  Tierman's  Ex'r  i'.  Security 
B.  &  L.  Ass'n,  152  Mo.  135;  Teel  v. 
Hilton,  21  R.  I.  227;  Hyland  v.  Roe, 
111   Wis.   361;   Lowe  v.  Jones,    192 


148 


IMPLIED   TRUSTS. 


[part  I. 


A  resulting  trust  will  also  arise  when  a  trustee  mixes  trust 
funds  with  his  own,  for  it  will  then  become  the  trustee's  duty  to 
establish  how  much  of  his  own  money  went  to  the  purchase,  or 
the  cestui  que  trust  will  take  the  whole.  This  is  in  accordance 
with  the  usual  rule  upon  the  subject  of  confusion  of  goods. ^  It 
has  been  doubted,  however,  whether  the  cestui  que  trust  in  such 
cases  has  anything  more  than  a  lien  on  the  property  to  the  ex- 
tent of  the  money  belonging  to  the  trust  estate  f  but  the  general 
rule  in  America  is  in  favor  of  a  resulting  trust.^ 

Whether,  therefore,  the  property  into  which  trust  funds  are 
sought  to  be  traced  has  been  wholly  acquired,  or  whether  it  has 
been  in  part  only  bought  by  such  funds,  the  rule  is  the  same, 
and  trust  funds  may  be  followed  and  the  property  stamped, 
wholly  or  partially,  with  the  trust.  The  leading  case  upon  the 
subject  of  following  tmst  funds  is,  perhaps,  Hallett's  Estate 
already  cited.'*  There  Hallett,  a  solicitor,  held  for  one  Mrs. 
Cottrell  some  Russian  bonds,  the  interest  of  which  he  collected. 
He  improperly  sold  the  bonds,  and  put  the  money  into  his  gen- 


Mass.  94;  City  of  Lincoln  v.  Morrison, 
64  Neb.  822;  Board  of  Trustees  v. 
Postal,  121  Ky.  67. 

1  See  Hill  on  Trustees,  148  (4th 
Am.  ed.),  note;  Frith  r.  Cart  land,  34 
L.  J.  Ch.  301;  Pennell  v.  Deffell,  4 
De  G.,  M.  &  G.  372;  £'x  parte  Dale,  11 
Ch.  Div.  772;  In  re  Hallett's  Est.,  13 
Ch.  Div.  696.  See,  also,  Comm.  v. 
McAllister,  28  Pa.  480;  McAllister  v. 
Comm.,  30  Id.  536;  School  v.  Kirwin, 
25  111.  73;  Kip  v.  Bank  of  N.  Y.,  10 
Johns.  65;  People  v.  City  Bank  of 
Roche.ster,  96  N.  Y.  32;  Bohle  v. 
Hassclbroch,  64  N.  J.  Eq.  334;  Tufts 
V.  Latshaw,  172  Mo.  359;  Thompson's 
App.,  22  Pa.  16;  McLarren  v.  Brewer, 
51  Mc.  402;  Seaman  v.  Cook,  14  111. 
505;  Russell  i'.  Jackson,  10  Hare,  209; 
Hudson  V.  Hawkins,  79  Ga.  274; 
Sherwood  /;.  Cent.  Mich.  Savings 
Bank,  103  Mich.  109;  Piano  Manuf. 
Co.  V.  Auld,  14  S.  Dak.  512;  Hutchin- 
son i:  Bank,  145  Ala.  196. 

2  Where  a  definite  portion  of  the 
purchase-money  is  paid  for  by  trust 
funds,  there  will  be  a  lien  to  the  ex- 


tent of  the  trust  funds  used.  Hum- 
phreys r.  Butler,  51  Ark.  354;  Green 
V.  Green,  56  S.  C.  193.  See  Faulkner 
V.  Hendy,  103  Cal.  15;  Myers  v.  Board 
of  Education,  51  Kan.  87;  Myers  v. 
Myers,  47  W.  Va.  487;  Thum  v. 
Wolstenholme,  21  Utah,  446;  Bank 
I'.  Bank,  62  Kan.  788. 

3  Wallace  v.  Duffield,  2  S.  &  R.  530; 
Wallace  v.  McCullough,  1  Rich.  Eq. 
426;  Day  v.  Roth,  18  N.  Y.  456; 
Holmes  v.  Gilmari,  138  Id.  369  (see, 
however,  Matter  of  Hicks,  170  N.  Y. 
195);  Atkinson  v.  Ward,  47  Ark.  540; 
Hill  on  Trustees,  148  (4th  Am.  ed.), 
note;  Humphreys  v.  Butler,  51  Ark. 
351;  .Warner  v.  Morse,  149  Mass.  400; 
Zundell  r.  Gess,  73  Tex.  144;  Shaffer 
V.  Fetty,  30  W.  Va.  248;  Bitzer  v. 
Bobo,  39  Minn.  18.  In  England,  see 
contra,  In  re  Pumfrey,  22  Ch.  D.  261. 
See,  also,  In  re  Hallett's  Est.  (supra); 
Schwartz  v.  Gerhardt,  44  Or.  425. 

4  13  Ch.  D.  696.  See  In  re  Hallett 
&  Co.,  ex  parte  Blane  [1894],  2  Q.  B. 
237,  where  the  fund  could  not  be  fol- 
lowed. 


CH.  III.] 


IMPLIED   TRUSTS, 


149 


eral  account  at  his  bankers.  The  sum  thus  deposited  was  £2200. 
Subsequently,  Hallett  paid  into  his  account  at  his  bankers  other 
moneys  of  his  own,  increasing  his  balance  to  £3000.  He  died. 
It  was  held  that  the  proceeds  of  Mrs.  Cottrell's  bonds  could  be 
followed,  and  could  be  charged  upon  the  £3000  which  stood  to 
Hallett's  credit  at  his  bankers  at  the  date  of  his  death.  The 
language  of  Sir  George  Jessel,  M.  R.,  in  this  case,  furnishes  a 
striking  statement  of  the  principles  upon  which  the  decision  is 
based.  "Supposing,"  he  says,  "the  trust  money  were  1000 
sovereigns,  and  the  trustee  put  them  into  a  bag,  and  by  mistake, 
or  accident,  or  otherwise  dropped  a  sovereign  of  his  own  into  the 
bag,  could  anybody  suppose  that  a  judge  in  equity  would  find 
any  difficulty  in  saying  that  the  cestui  que  trust  has  a  right  to  take 
1000  sovereigns  out  of  the  bag?" 

The  doctrine  of  following  trust  funds  is  well  recognized  in 
America;  and,  indeed,  it  may  be  truthfully  said  that  it  has  kept 
quite  abreast,  if  not  in  advance  of  the  English  rule.  The  case 
of  the  Farmers'  and  Mechanics'  Bank  v.  King  *  is  particularly 
to  be  noted  as  a  somewhat  early  recognition  of  the  doctrine,  as 
it  was  afterwards  stated  by  Sir  George  Jessel  in  the  language 
already  quoted ;  and  other  and  later  examples  of  the  same  rule 
may  be  found  in  the  decisions  both  of  the  federal  and  of  state 
courts.^  The  case  of  the  Union  Stock  Yards  Bank  v.  Gillespie  ^ 
not  only  illustrates  the  general  rule,  but  the  fact,  also,  that  it 
extends  to  relations  which  savor  of  a  fiduciary  character,  al- 
though they  may  not  be  those  of  trustee  and  cestui  que  trust; 
and  the  case  of  the  American  Sugar  Refining  Co.  v.  Fancher  "* 
is  an  example  of  the  way  in  which  the  same  rule  has  been  ap- 
plied in  equity  to  relieve  against  actual  fraud ;  while  a  late  case 
in  South  Carolina  may  be  cited  as  a  further  illustration  of  the 
appUcation  of  Sir  George  Jessel's  remarks.* 

Of  course,  where  the  trust  funds  cannot,  as  a  matter  of  fact, 
be  traced,  the  equitable  title  of  the  cestui  que  trust  fails.*    The 


1  57  Pa.  202. 

2  National  Bank  v.  Ins.  Co.,  104 
U.  S.  54,  where  the  subject  is  dis- 
cussed by  Mr.  Justice  Matthews. 

»137U.S.411;Comm.  Bank  of  Pa. 
V.  Armstrong,  148  U.  S.  50;  Colum- 
bian Bank's  Estate,  147  Pa.  422. 
For  caies  in  state  courts,  see  note  9, 
p.  147,  and  note  3,  p.  148,  ante.     See, 


also,  Englar  v.  Offutt,  70  Md.  78; 
Continental  Nat.  Bank  v.  Weems,  69 
Tex.  489;  Woodhouse  v.  Crandall, 
197  111.  104. 

*145  N.  Y.  552.  See  also  Corn 
Ex.  Nat.  Bk.  v.  Solicitors'  Tr.  Co., 
188  Pa.  330. 

^  Wulbem  v.  Timmons,  55  S.  C.  456. 

B  Littl«    V.    Cbadwick,    151    Mam. 


150 


IMPLIED   TRUSTS. 


[part  I. 


trust  funds,  to  be  followed,  must  be  traced  to  some  particular 
property  or  some  particular  fund  or  account,  for  if  they  are 
mingled  with  general  assets,  indiscriminately  and  with  nothing 
to  identify  them,  they  cannot  be  followed.^ 
Resulting  trusts  of  the  second  class  may  be  proved  by  parol.^ 

87.  Conveyance  where  trust  is  not  declared  or  fails. 

The  third  of  the  classes  into  which  resulting  trusts  have  been 
divided  embraces  those  cases  in  which  there  is  a  disposition  of 
property  upon  trust,  but  no  trust  is  declared,  or  is  only  partially 
declared,  or  wholly  or  partially  fails.  "There  is  no  equitable 
principle  more  firmly  established  than  that  where  a  voluntary 
disposition  of  property  by  deed  or  will  is  made  to  a  person  as  trus- 
tee, and  the  trust  is  not  declared  at  all,  or  is  ineffectually  de- 
clared, or  does  not  extend  to  the  whole  interest  given  to  the  trus- 
tee, or  it  fails  either  wholly  or  in  part  by  lapse  or  otherwise,  the 
interest  so  undisposed  of  will  be  held  by  the  trustee,  not  for  his 
own  benefit,  but  as  a  resulting  trust  for  the  donor  himself,  or  for 
his  heir-at-law  or  next  of  kin,  according  to  the  nature  of  the 
estate."  ^ 

The  rule  above  stated  appUes,  it  will  be  observed,  to  volun- 
tary dispositions,  and  not  to  those  based  upon  a  valuable  con- 
sideration,'* and  it  is  called  into  operation  in  the  case  of  wills 
more  frequently  than  in  deeds.  The  presumption  of  a  resulting 
trust  is,  indeed,  stronger  in  a  case  of  a  disposition  of  property 
by  conveyance  inter  vivos,  than  in  a  testamentary  disposition, 


110;  Nonotuck  Silk  Co.  v.  Flanders, 
87  Wis.  2'M,  overruling  McLeod  v. 
Evans,  66  Wis.  401,  409;  Bradley  r. 
Chesebrough,  111  Iowa,  126;  Twohy 
Mercantile  Co.  v.  Melbye,  S3  Minn. 
394;  Morrison  r.  Lincoln  Savings 
Bank,  57  Neb.  225;  Bishop  v.  Ma- 
honey,  70  Minn.  238;  Ellicott  v.  Kuhl, 
60  N.  J.  Eq.  333;  Bircher  v.  Walther, 
163  Mo.  461;  White  v.  Commercial 
and  Farmers'  Bank,  60  8.  C.  122.  In 
Bank  Commissioners  v.  Security 
Trust  Co.,  70  N.  H.  536,  Little  v. 
Chadwick  was  followed  and  McLeod 
V.  Evans  disapproved.  See  Blake  v. 
State  Savings  Bank,  12  Wash.  619; 
Slater  v.  Oriental  Mills,  18  R.  I.  352; 
Ferchen  v.  Aradt,  26  Oreg.  121;  Far- 


well  V.  Kloman,  45  Neb.  424;  Cecil 
Nat.  Bank  v.  Thurber,  8  U.  S.  App. 
496. 

1  See  Freiberg  v.  Stoddard,  161  Pa. 
259,  and  the  remarks  of  Rice,  P.  J., 
on  pp.  261  and  263.  Note  also.  City 
of  St.  Paul  V.  Se^Tnour,  71  Minn.  303; 
Ins.  Co.  V.  Caldwell,  59  Kan.  156; 
Paul  V.  Draper,  158  Mo.  197;  Shute  v. 
Hinman,  34  Oreg.  578;  Winston  r. 
Miller,  139  Ala.  259;  Watts  v.  New- 
berry, 107  Va.  233. 

2  Lench  v.  Lench,  10  Ves.  517;  note 
to  Dyer  i'.  Dyer,  1  Lead.  Cas.  Eq. 
*215;  Smith  v.  Turley,  32  W.  Va. 
14. 

3  Hill  on  Trustees,  113,  114. 

*  Brown  v.  Jones,  1  Atk.  191. 


CH.  III.] 


IMPLIED   TRUSTS. 


151 


which  always  implies  bounty ;  ^  but  the  limitations  of  beneficial 
interests  are  usually  more  precise  and  exhaustive  in  deeds  than 
in  wills,  and  a  case  of  an  interest  undisposed  of  is  not  therefore 
so  likely  to  arise.- 

The  plainest  case  of  a  trust  of  the  kind  now  attempted  to  be 
explained  is  that  in  which  a  gift  is  made  upon  trust,  but  no 
trusts  are  declared.  Of  this  a  striking  example  is  the  case  of  the 
Corporation  of  Gloucester  v.  Wood,''  where  a  testator  gave 
£200,000  to  his  executors  "for  the  purpose  I  have  before  named," 
but  no  purposes  had  been  named,  and  it  was  held  that  there  was 
a  resulting  trust  in  favor  of  the  residuary  legatees. 

An  insufficient  declaration  of  trust  will  have  the  same  effect 
as  an  entire  failure  to  declare."' 


88.  Where  the  beneficial  interest  is  not  exhausted. 

A  more  difficult  question  not  unf requently  arises  in  those  cases 
in  which  the  gift  is  made  upon  trusts  which  are  effectively  de- 
clared, but  which  do  not  exhaust  the  entire  beneficial  interest. 
Here,  if  the  intention  is  plain  that  the  donee  is  not  to  take  the 
undisposed  residue  beneficially,  there  will,  of  course,  be  a  result- 
ing trust  in  favor  of  the  next  of  kin,  or  the  heir-at-law,  accord- 
ing to  the  nature  of  the  property;  but  the  difficult  point  to 
determine  is  whether  the  donee  was  intended  to  take  the  un- 
disposed interest  beneficially.  Many  authorities  exist  upon  this 
point,  and  many  fine  distinctions  have  been  drawn.  In  Barrs  v. 
Fewkes,^  however,  the  result  of  the  cases  is  thus  stated  by  the 
(then)  Vice-Chancellor,  Wood:  1st,  where  there  is  a  gift  to  A. 
to  enable  him  to  do  something,  where  he  has  a  choice  whether 
he  will  do  it  or  not,  then  the  gift  is  for  his  own  benefit,  the  motive 
why  it  is  given  to  him  being  stated ;  2d,  where  you  find  the  gift 
is  for  the  general  purposes  of  the  will,  then  the  person  who  takes 


1  Sidney  v.  Shelly,  19  Ves.  358. 

2  As  an  illustration  of  the  question 
under  a  deed,  see  Smith  v.  Cooke 
[1891],  A.  C.  297,  and  Witt  v.  Carroll, 
37  So.  Car.  388. 

3  3  Hare,  131;  1  H.  L.  Cas.  272. 
See,  also,  Schmucker's  Estate  v.  Reel, 
61  Mo.  592,  where  the  subject  is  care- 
fully discussed.  Also  Heidenheimer 
V.  Bauman,  84  Tex.  174,  and  Trinity 
M.  E.  Church  v.  Baker,  91  Md.  539. 

*  Hill  on  Trustees,   116;  Morice  v. 


Bishop  of  Durham,  9  Ves.  399;  10 
Id.  522.  See,  also,  Lomax  v.  Ripley, 
3  Sm.  &  Giff.  48;  King  v.  Mitchell, 
8  Pet.  326;  Sheaffer's  Appeal,  S  Pa. 
38.  See,  however,  Benning  r.  Ben- 
ning's  Ex'rs,  14  B.  Mon.  585. 

5  2  Hem.  &  M.  60.  See,  also.  Ell- 
cock  V.  Mapp,  3  H.  L.  Cas.  492;  King 
V.  Denison,  1  V.  &  B.  272;  Williams 
V.  Roberts,  4  Jur.  n.  s.  18;  Sheaffer's 
Appeal,  8  Pa.  38;  Hill  on  Trustees, 
119. 


152 


IMPLIED   TRUSTS, 


[part  I. 


the  estate  cannot  take  the  surplus,  after  satisfying  the  trust, 
for  his  own  benefit;  and  3d,  where  a  charge  is  created  by  the 
will,  the  devisee  takes  the  surplus  for  his  own  benefit,  no  trust 
being  implied. 

Another  instance  of  the  class  of  resulting  trusts  now  under 
consideration  is  that  which  arises  out  of  the  failure  of  a  gift  by 
lapse.  Where,  for  example,  a  testator  declares  a  trust  in  favor 
of  A.,  and  A.  dies  in  the  testator's  lifetime,  the  trustee  will  hold 
the  property  for  the  benefit  of  the  testator's  real  or  personal 
representatives,  according  to  the  nature  of  the  property.^  So, 
too,  where  a  gift  is  void  ab  initio  because  of  its  violation  of  some 
statutory  provision  {e.  g.,  the  statutes  against  excessive  accumu- 
lations), or  because  of  its  illegal  purpose,  the  interest  which  is 
thus  attempted  to  be  illegally  created  will  result  for  the  benefit 
of  the  heir  or  next  of  kin.- 

A  resulting  trust  of  personalty  will  not,  however,  arise  where 
there  is  a  residuary  clause,  because  that  clause  ordinarily  in- 
cludes all  interest  not  disposed  of  at  the  time  of  the  testator's 
death. ^  Where,  however,  the  interest  which  fails  constitutes, 
or  forms  a  part  of,  the  residuary  estate,  a  resulting  trust  will  take 
place. ^ 

It  is  sometimes  difficult  to  determine  for  whose  benefit  the 
resulting  trust  takes  effect, — that  is  to  say,  whether  for  the  heir 
or  next  of  kin.  Thus,  where  real  estate  is  directed  to  be  sold, 
and  the  proceeds  applied  to  certain  purposes,  and  there  is  a 
partial  failure  of  purposes  for  which  the  sale  was  designed,  a 
question  may  arise  whether  the  undisposed  surplus  will  go  to 
the  next  of  kin  in  its  new  condition  of  personalty,  or  to  the  heir 
in  accordance  with  its  original  state.  The  general  rule  in  Eng- 
land now  is  that  unless  there  is  a  conversion  out  and  out  and 
for  all  purposes,  the  heir-at-law  will  take.^    In  America,  how- 


1  Hill  on  Trustees,  135,  136;  Ban- 
croft V.  Russell,  157  Mass.  47;  Has- 
kins  V.  Kendall,  158  Id.  224. 

2  Johnson  v.  Clarkson,  3  Rich.  Eq. 
305;  Ford  v.  Dangerfield,  8  Id.  95; 
Drew  V.  Wakefield,  54  Me.  291;  Lusk 
V.  Lewis,  32  Miss.  297;  St.  Paul's  Ch. 
V.  Att.-Gen.,  164  Mass.  188;  Heiskell 
V.  Trout,  31  W.  Va.  810.  See  Frank- 
lin's Estate,  150  Pa.  437,  for  a  case  in 
which  the  court  refused  relief  to  the 


cestuis  que  trusteni  under  a  resulting 
trust  of  this  sort  on  the  ground  that 
the  holder  of  the  legal  title  (a  mu- 
nicipality) could  not  administer  a 
private  trust.  But  see  post,  §  136, 
and  notes. 

3  Woolmer's  Est.,  3  Whart.  477. 

*  Leake  v.  Robinson,  2  Meriv.  392; 
Hill  on  Trustees,  136. 

5  Ackroyd  v.  Smithson,  1  Lead.  Cas 
Eq.  872  (4th  Eng.  ed.). 


CH.  III.]  IMPLIED   TRUSTS.  153 

ever,  the  rule  is  not  so  strongly  in  favor  of  the  heir,*  and  where 
realty  and  personalty  are  mixed  in  a  common  fund,  and  there  is  a 
partial  failure  of  a  beneficial  interest  by  lapse,  the  trust  which 
results  will  enure  to  the  benefit  of  the  personal,  and  not  the  real 
representative  of  the  testator. 

89.  Exceptions  in  favor  of  charities. 

An  exception  to  the  doctrine  of  resulting  trusts  of  the  class 
now  under  discussion  occurs  in  the  case  of  a  charity.  It  has 
already  been  stated  that  one  of  the  requisites  to  the  creation  of  a 
valid  trust  is  certainty  in  the  object  to  be  benefited.  If  the 
object  of  an  ordinary  trust  be  not  defined  with  sufficient  pre- 
cision, the  gift  will  fail,  and  there  will,  of  course,  be  a  resulting 
trust.  But  in  trusts  for  charitable  uses  the  rule  is  otherwise. 
Uncertainty  in  the  object  does  not  necessarily  result  in  a  failure 
of  the  gift.  Indeed,  uncertainty  in  the  object  has  been  said  to  be 
a  characteristic  of  a  true  charitable  use.^'  In  New  York,  how- 
ever, the  same  certainty  is  required  in  charitable  trusts  as  in 
ordinary  express  trusts.^ 

Therefore,  where  there  is  a  gift  for  charitable  purposes  gen- 
erally, although  no  particular  purpose  is  declared,  or,  if  de- 
clared, does  not  exhaust  the  entire  interest,  there  will  be  no 
resulting  trust,  but  the  general  charitable  purpose  will  be  carried 
out  by  the  Court  of  Chancery."* 

The  principle  upon  which  a  Court  of  Chancery  acts  in  thus 
carrying  out  a  general  charitable  intent  is  what  is  known  in  Eng- 
land as  the  cy  pres  doctrine — in  other  words,  a  doctrine  by  which 
the  charitable  disposition  will  be  effected  as  nearly  as  may  be. 
This  principle  has  not  been  as  much  favored  in  the  United  States 
as  in  England,  and  the  exception  to  the  general  rule  as  to  result- 
ing trusts  is  therefore  not,  perhaps,  so  broad  as  in  England. 
The  subject  will  be  found  noticed  under  the  head  of  Trusts  for 
Charitable  Uses.^  At  present  it  is  sufficient  to  observe  that  this 
exception  does  exist. 

1  Hill  on  Trustees,  143;  post,  the  trust  is  for  a  paWicuiar  charitable 
Part  II,  Chap.  V.  purpose  only,  and  that  particular  pur- 

2  Infra,  Part  I,  Chap.  V.  pose  has  determined,  there  will  be  a 
sTilden  v.  Green,   130   N.   Y.   29.       resuhing  trust  for  the  heirs.     Hop- 

And  see  In  re  Hoffen's  Est.,  70  Wis.  kins  v.  Grimshaw,  165  U.  S.  342- 
522.  353. 

*  Hill  on  Trustees,  128.    But  where  ^  Infra,  Part  I,  Chap.  V. 


154 


IMPLIED   TRUSTS. 


[part  I. 


90.  Conveyances  without  consideration. 

The  last  of  the  classes  into  which  resulting  trusts  have  been 
divided  is  where  there  is  a  voluntary  conveyance  without  any 
consideration,  and  it  appears  from  circumstances  that  the  grantee 
was  not  intended  to  take  beneficially.^ 

According  to  the  ancient  doctrine,  where  a  feoffment  was 
made  without  any  consideration,  the  use  resulted  to  the  feoffor; 
and  it  was  formerly  thought  that  the  same  mle  would  apply  to 
voluntary  declarations  of  trust.'  But  the  true  rule  now  seems 
to  be  that  where  the  instrument  is  perfectly  executed  and  in- 
tended to  operate  at  once,  no  resulting  trust  for  the  grantor 
will  arise  from  the  mere  fact  that  the  transaction  is  a  voluntary 
one,  unless  there  are  other  circumstances  which  tend  to  show 
that  the  grantee  was  not  intended  to  take  beneficially.'^  But 
very  slight  evidence  will  suffice  to  warrant  the  implication  of  a 
trust  in  favor  of  the  grantor.^ 

91.  Constructive  Trusts. 

The  second  general  division  of  implied  trusts  is  that  which 
embraces  those  known  as  Constructive  Trusts.  Constructive 
trusts  are  those  which  arise  purely  by  construction  of  equity, 
and  are  entirely  independent  of  any  actual  or  presumed  inten- 
tion of  the  parties.  Nor  have  constructive  trusts,  as  they  are 
here  considered,  any  element  of  fraud  in  them.  Equity,  indeed, 
as  we  shall  see,  makes  use  of  the  machinery  of  a  trust  for  the 
purpose  of  affording  redress  in  cases  of  fraud;  as,  when  a  party 
has  acquired  the  legal  title  to  property  by  unfair  means,  he  will 
be  deemed  to  hold  it  in  trust  for  the  injured  party,  who  may  call 
for  a  conveyance  thereof.^  The  party  guilty  of  the  fraud  is  said, 
in  such  cases,  to  be  a  trustee  ex  malejicio.^    But,  in  such  cases, 


1  Clark  V.  Patterson,  158  Mass.  388. 

2  Hill  on  Trustees,  196. 

3  Souverbye  v.  Arden,  1  Johns.  Ch. 
240;  Rathbuu  v.  Rathbun,  6  Barb. 
98;  Philbrook  v.  Delano,  29  Me.  410; 
Jackson  v.  Cleveland,  15  Mich.  103; 
Baldwin  v.  Campfield,  4  Halst.  Ch. 
891;  Hogan  v.  Jaques,  19  N.  J.  Eq. 
126;  Bank  of  United  States  v.  Hous- 
man,  6  Paige  Ch.  526;  Titcomb  v. 
.Morrill,  10  Allen,  15;  Salisbury  v. 
Clarke,  61  Vt.  453.  See,  however, 
Hogan  V.  Strayhom,  65  N.  C.  279. 


*  Rogers  v.  N.  Y.  and  Tex.  Land 
Co.,  134  N.  Y.  197-214. 

5  Edwards  t>.  Culberson,  111  N. 
Car.  342.  And  see  the  language  of 
the  court  in  Cole  v.  Fickett,  95  Ale. 
265,  and  in  Lockhart  v.  Leeds,  195 
U.  S.  436. 

«  See  Jones  v.  Van  Doren  130  U.  S. 
691;  Hoge  v.  Hoge,  1  Watts,  163; 
Church  V.  Ruland,  64  Pa.  443; 
Beegle  v.  Wentz,  55  Id.  374;  Squire's 
Appeal,  70  Id.  266;  Jones  v.  Jones, 
140  Cal.  587. 


CH.  III.]  IMPLIED   TRUSTS.  155 

the  interference  of  courts  of  equity  is  called  into  play  by  fraud 
as  a  distinct  head  of  jurisdiction ;  and  the  complainant's  right  to 
relief  is  based  upon  that  ground,  the  defendant  being  treated  as  a 
trustee  merely  for  the  purpose  of  working  out  the  equity  of  the 
complainant.^  Cases  of  this  description,  therefore,  will  be  con- 
sidered under  the  head  of  Fraud.  At  present  we  have  to  do  with 
those  trusts  which  are,  in  the  truest  and  most  technical  sense, 
constructive — those,  namely,  which  arise  by  pure  implication 
of  equity,  and  without  regard  to  the  intention  of  parties,  or 
(necessarily)  the  frustration  of  fraud. 

92.  Trustee  cannot  acquire  rights  antagonistic  to  cestui  que 
tru^t. 

One  of  the  most  ordinary  trusts  of  this  kind  is  that  which 
grows  out  of  the  rule  of  law  which  forbids  a  tmstee,  or  any  other 
person  who  occupies  a  fiduciary  or  quasi-fiduciary  position, 
from  gaining  any  personal  advantage  touching  the  thing  or 
subject  as  to  which  such  fiduciary  position  exists.^  To  use  the 
language  of  a  learned  author,  ''wherever  one  person  is  placed 
in  such  relation  to  another,  by  the  act  or  consent  of  that  other, 
or  the  act  of  a  third  person,  or  of  the  law,  that  he  becomes  in- 
terested for  him,  or. interested  with  him  in  any  subject  of  prop- 
erty or  business,  he  is  prohibited  from  acquiring  rights  in  that 
subject  antagonistic  to  the  person  with  whose  interest  he  has 
become  associated."  ^  The  instance  usually  given  of  this  rule 
is  the  renewal  of  a  lease  by  a  trustee  in  his  own  name  and  with 
his  own  funds,  which  renewal  will,  by  the  equitable  doctrine 
now  under  consideration,  enure  to  the  benefit  of  the  cestui  que 
trust;  and  the  leading  authority  upon  the  subject  is  the  case  of 
Keech  v.  Sandford,  otherwise  known  as  the  Rumford  Market 
Case.''  In  that  case  the  trustee  applied,  in  the  first  instance, 
for  the  renewal  for  the  benefit  of  the  beneficiary,  who  was  an 
infant;  but  the  renewal  was  refused  on  the  ground  that  the 
subje(:'t-matter  of  the  lease  being  the  profits  of  a  market,  then^ 
could  be  no  distress,  and  the  lessee's  remedy  must  be  on  tiic 
covenant  alone,  by  which  the  infant  could  not  be  bound.    The 

1  Kroll  V.  Coach,  45  Or.  473.  57  N.  H.  397.    See  Chicago  Hansom 

2  Hill  on  Trustees,  159.  Cab  Co.  v.  Yerkes,  141  111.  320,  and 

3  American  note  to  Keech  v.  Sand-  Trice  v.  Comstock,  57  C.  C.  A.  646. 
ford,  1  Lead.  Cas.  in  Eq.  62  (4th  Am.  *  1  Lead.  Cas.  in  Eq.  44 ;  Sel.  Cas.  in 
ed.);  Staats  v.  Bergen,  17  N.  J.  Eq.  Ch.  61.    See,  also,  Mill  v.  Hill,  3  H.  L. 
297;  Ashuelot  Railroad  Co.  v.  ElUot,  Cas.  828. 


156 


IMPLIED   TRUSTS. 


[part  I. 


trustee  then  renewed  for  himself;  and  it  was  held,  on  bill  filed, 
that  he  must  still  be  regarded  as  a  trustee  of  the  lease  for  the 
benefit  of  the  infant.  The  general  doctrine  of  this  case  is  well 
established  in  the  United  States,  ^  and  was  thus  expressed  in  a 
recent  case:  "There  is  a  reasonable  expectancy  attending  a  lease 
of  land  that  the  tenant  holding  possession  under  it  will  be  able 
to  renew  the  lease  at  its  expiration,  which  expectancy  is  under 
some  circumstances  recognized  as  a  valuable  property  right, 
though  the  tenant  may  have  no  way  of  enforcing  renewal.  Eq- 
uity will  so  regard  and  treat  it  as  against  those  occupying  fidu- 
ciary relations  to  the  tenant  in  respect  of  the  leased  property 
when  they  seek  to  supplant  the  tenant  in  the  renewal  of  the  lease, 
and  the  doctrine  applies  w^here  a  corporation's  managing  officers 
offend  against  it."  - 

It  may  be  thought  that  the  above  example  might  fall  more 
properly  under  the  head  of  a  resulting  trust  of  the  second  class,^ 
on  the  one  hand,  or  under  the  head  of  constructive  trusts  by 
presumptive  fraud  on  the  other.  But  the  instance  of  a  trust 
just  stated  differs  from  a  resulting  trust  of  the  second  class, 
inasmuch  as  the  renewal  of  the  lease  was  not  made  with  trust 
funds,  but  with  the  proper  money  of  the  trustee ;  and  it  differs 
from  a  trust  by  fraud  (growing  out  of  the  relation  of  parties) 
in  this  that  no  fraudulent  intent  is  even  presumed  to  exist, 
but  the  renewal  is  forbidden  simply  on  the  ground  of  public 
policy  alone/ 


93.  Extent  of  this  rule. 

The  rule  under  discussion  applies  not  only  to  persons  stand- 


1  American  note  to  Keech  v.  Sand- 
ford  (supra);  Parkist  v.  Alexander,  1 
Johns.  Ch.  394;  Green  v.  Winter,  Id. 
26;  Holridge  v.  Gillespie,  2  Id.  30; 
Davoue  v.  Fanning,  Id.  252;  Van 
Home  V.  Fonda,  5  Id.  409;  Evertson 
V.  Tappen,  Id.  514;  Wilson  v.  Troup, 
2Cowen,  195;  Butler  v.  Hicks,  11  Sm. 
&  Marsh.  78;  Mathews  v.  Dragaud,  3 
Dess.  25;  Irwin  v.  Harris,  6  Ired.  Eq. 
221;  Clark  v.  Cantwell,  3  Head,  202; 
Heager's  Ex'rs,  15  S.  &  R.  65;  Gal- 
braith  v.  Elder,  8  Watts,  81 ;  Huson  v. 
Wallace,  1  Rich.  Eq.  2;  King  v.  Cush- 
man,  41  111.  31;  Frank's  Appeal,  59 


Pa.  190;  Woods  v.  Irwin,  163  Id.  414; 
Jones's  Estate,  179  Id.  36;  McGuire  v. 
Devlin,  158  Mass.  63;  Petrie  v.  Bade- 
noch,  102  Mich.  45;  Fricker  v.  Amer- 
icas Mfg.  Co.,  124  Ga.  165. 

2  Lagarde  et  al.  v.  Anniston  Lime 
&  Stone  Co.,  126  Ala.  496;  De  Bar- 
deleben  v.  Bessemer  Land  Co.,  140 
Ala.  621. 

3  Supra,  §  86.  See  Cooper  v. 
Phibbs.  L.  R.  2  H.  L.  149. 

*  Rich  V.  Black,  173  Pa.  92.  Where 
no  actual  fraud  exists,  the  remedy  is 
in  equity  alone.  Yeackel  v.  Litch- 
field, 13  Allen,  417. 


1 


CH.  III.] 


IMPLIED   TRUSTS. 


157 


ing  in  a  direct  fiduciary  relation  toward  others — such  as  trus- 
tees, executors,  attorneys,  and  agents,  but  also  to  those  who 
occupy  any  position  out  of  which  a  similar  duty  ought  in  equity 
and  good  morals  to  arise.'  Thus  it  will  be  enforced  against 
partners, 2  tenants  in  common,^  tenants  for  life,'*  tenants  for 
years, ^  mortgagees,^  a  husband,^  attorneys-at-law,*  and  vendees 
under  articles,''  in  favor  of  co-partners,  co-tenants,  tenants  in 
remainder,  landlords,  mortgagors,  a  wife,  clients,  and  vendors, 
respectively.  It  has  been  applied  as  against  the  receiver  of  a 
corporation,'"  and  his  confidential  clerk; '^  and  it  has  been  en- 
forced against  directors  of  corporations  in  favor  of  stockholders.*^ 
And  these  instances  must  be  considered  only  as  illustrations 
of  the  principle,  and  not  as  an  exhaustive  catalogue  of  the  parties 
to  whom  it  will  be  confined.  A  purchaser  from  a  trustee,  ex- 
ecutor, etc.,  will  also  be  held  to  the  same  responsibility  if  he 
is  either  a  purchaser  without  value  or  a  purchaser  with  notice 
of  the  trust.  To  be  protected  he  must  be  a  bona  fide  purchaser, 
without  notice  and  for  a  valuable  consideration.'^ 


1  Sun  Dance  Mining  Co.  v.  Frost, 
7  Ariz.  297. 

2  Anderson  v.  Lemon,  4  Seld.  2.36; 
Gushing  v.  Danforth,  76  Me.  114; 
Roby  V.  Colehour,  135  111.  300;  Gunn 
V.  Black's  Adm'trx,  19  U.  S.  App. 
477-485.  But  the  rule  does  not 
apply  to  transactions  outside  of  the 
scope  of  the  firm's  business.  Latta 
V.  Kilbourn,  150  U.  S.  524. 

3  Van  Home  v.  Fonda,  5  Johns. 
Ch.  409;  Bissell  v.  Foss,  114  U.  S.  252; 
Turner  v.  Sawyer,  150  Id.  578;  Pillow 
V.  Southwest  Imp.  Co.,  92  Ya.  144; 
Franklin  Mining  Co.  v.  O'Brien,  22 
Col.  129;  Keller  v.  Auble,  58  Pa.  410; 
Tanney  v.  Tanney,  159  Id.  277; 
Weaver  v.  Akin,  48  W.  Va.  456.  But 
see  Kennedy  v.  De  Trafford  [1896],  1 
Ch.  762,  contra,  where  Van  Home  i'. 
Fonda  is  criticised.  See,  also,  Ste- 
vens V.  Reynolds,  143  Ind.  467. 

■•  Dickinson  v.  Codwise,  1  Sandf. 
Ch.  227;  Moore  v.  Simon.son,  27  Or- 
"(gon,  117. 

5  Matthews's  Appeal,  104  Pa.  444; 
Oppenheimer  v.  Levi,  96  Md.  296. 


8  Hyndman  i\  Hjiidman,  19  Vt.  9; 
Benham  r.  Rowe,  2  Cal.  387;  McHan 
V.  Ordway,  76  Ala.  347.  See  Wood- 
lee  ('.  Burch,  43  Mo.  231;  Fellows  v. 
Loomis,  170  Pa.  415;  Chrisman  v. 
Hough,  146  Mo.  102;  Porter  v. 
Corbin,  124  Mich.  201. 

7  Swisshelm's  Appeal,  56  Pa.  475. 

8  Moore  v.  Brecken,  27  111.  23;  Gal- 
braith  v.  Elder,  8  Watts,  81 ;  Taylor  v. 
Barker,  30  S.  C.  238;  Olson  v.  Lamb, 
56  Neb.  104. 

9  Morgan  r.  Boone,  4  Monroe,  291; 
Stephens  v.  Black,  77  Pa.  138; 
Petroski  v.  Minzgohr,  144  Mich. 
356. 

loShadewald  v.  White,  74  Minn. 
208;  Cook  v.  Martin,  75  Ark.  40. 

11  Gilbert  v.  Hewetson,  79  Minn. 
326. 

i2Fishel  V.  Goddard,  30  Colo. 
152. 

13  Hill     on     Trustees,     162,     163 
Bridgman  v.  Green,  2  Ves.  Sr.  627 
De  Everett  v.  Henry,  67  Tex.  402 
Vance  v.  Kirk,  29  W.  Va.  344;  Jack- 
son V.  Thomson,  222  Pa.  232. 


158 


IMPLIED    TRUSTS. 


[part  I. 


On  the  other  hand,  a  vendor  of  real  estate  under  articles,  or  a 
mortgagor,  is  held  to  a  corresponding  duty  towards  the  vendee 
or  mortgagee.  Thus,  it  has  been  held  that  if  a  lessee  mortgages 
the  leasehold,  and  afterwards  obtains  a  renewal,  the  renewal 
shall  enure  for  the  benefit  of  the  mortgagee.^  Whether  a  person 
who,  if  he  renew  at  all,  is  bound  to  renew  for  the  benefit  of 
another,  can  purchase  the  reversion  for  himself,  seems  to  be  a 
doubtful  question.^ 

The  renewal  of  leaseholds  is  only  an  example  of  the  general 
principle  stated  above,  viz.,  that  no  fiduciary  can  gain  any  per- 
sonal advantage  touching  the  subject  of  the  trust .^  The  same 
doctrine  is  applied  to  prevent  the  purchase  by  persons  in  such 
positions  of  any  claims,  encumbrances,  or  outstanding  titles. 
If,  therefore,  a  tenant  in  common  were  to  purchase  an  outstand- 
ing, adverse  title,  the  acquisition  would  enure  to  the  benefit  of 
his  co-tenants.'*  In  other  words,  he  will  be  treated  as  a  con- 
structive trustee  of  the  newly-acquired  title  for  the  benefit  of 
the  other  owners.  And  an  agent  employed  to  purchase,  who 
takes  a  conveyance  in  his  own  name,  will  be  considered  as 
holding  the  property  in  trust  for  his  principal.^ 

But  a  vendee  under  articles  who  buys  at  sheriff's  sale  to  save 
his  title,  is  not  a  trustee  for  the  vendor — the  only  right  of  the 
latter  is  to  recover  on  the  agreement.^  It  must  be  recollected, 
however,  that  a  vendee  in  possession  under  articles  occupies  to- 
wards the  vendor  a  position  analogous  to  that  which  a  tenant 
holds  to  a  landlord.  He  cannot  deny  his  vendor's  title;  and, 
consequently,  cannot  set  up  a  tax  title  as  a  defence  to  a  bill  for 
specific  performance.' 

94.  Trustee  cannot  purchase  at  his  own  sale. 

Akin  to  the  doctrine  which  has  just  been  noticed  is  that 
which  forbids  trustees  or  executors  or  mortgagees  with  a  power 


1  Smith  V.  Chichester,  1  Con.  &  L. 
486. 

2  Randall  v.  Russell,  3  Meriv.  190. 
Though  see  Britton  v.  Lewis,  8  Rich. 
Eq.  271;  Eldridge  v.  Smith,  34  Vt. 
484. 

3  Hill  on  Trustees,  539  (849,  4th 
Am.  ed.). 

<  Lloyd  V.  Lynch,  28  Pa.  419; 
Dickey's  Appeal,  73  Id.  247;  Sleight 
V.  Roe,  125  Mich.  585;  Van  Wagenen 


V.  Carpenter,  27  Colo.  444.  But  see 
Kennedy  v.  De  Trafford  [1896],  1  Ch. 
762. 

^  Parkist  v.  Alexander,  1  Johns.  Ch. 
394;  Wellford  v.  Chancellor,  5  Gratt. 
39;  Baker  v.  Whiting,  3  Sumn. 
476. 

8  See  Thompson  v.  Adams,  55  Pa . 
484;  Powell  v.  Lautzy,  173  Id.  549- 
550. 

^Curran  v.  Banks,  123  Mich.  394. 


CH.  III.]  IMPLIED   TRUSTS.  159 

of  sale  from  purchasing  at  their  own  sales. ^  It  has  been  held 
in  many  cases  that  if  trust  property  is  sold  by  the  trustee,  even 
at  public  sale,  he  cannot  purchase.  If  he  does  so  he  will  still 
be  considered,  at  the  option  of  the  cef<tni  que  trust,  a  trustee  by 
equitable  construction.' 

This  rule  does  not  proceed  on  the  ground  of  fraud,  but  because 
of  pubUc  poUcy.^  It  is  the  same  policy  as  that  which  forbids  a 
sheriff,  for  instance,  from  purchasing  at  a  sale  under  an  execu- 
tion.^ No  fraud  may  exist  in  point  of  fact;  no  fraud  is  pre- 
sumed in  law;  but  public  propriety  would  be  outraged  if  such 
acts  were  permitted,  and  hence  their  prohibition.  When  they 
do  occur,  the  wrong  inflicted  is  redressed  through  the  medium 
of  a  constructive  trust. •'^ 

This  rule  applies  not  only  to  those  cases  in  which  the  trustee 
or  agent  for  sale  buys  directly  from  the  beneficiary  (in  which 
case  indeed,  an  element  of  fraud  through  undue  influence  is 
introduced  by  which  the  transaction  is  vitiated),  but  also  to 
purchasers  at  public  auction,  where  all  the  world  has  a  chance 
to  buy,  and  it  makes  no  difference  whether  the  purchase  has  been 
advantageous  or  not;  in  either  event  the  cestui  que  trust  or  prin- 
cipal, as  the  case  may  be,  has  the  right  to  have  it  rescinded.^ 

iDownes    v.    Grazebrook,    3    Mer.  Black,  5  Watts,  303;  Rich  r.  Black, 

200;  Farrar  ?•.  Farrars,   Limited,  40  173  Pa.  99;  Staats  v.  Brrgen,  17  N.  .1. 

Ch.  D.  409;  Commercial  Union  Ins.  Eq.  544;  Blauvelt  r.  Ackerman,  20  Id. 

Co.  I'.  Scammon,  126  111.  355;  Nichols  141;   Miles  v.   Wheeler,   43   111.    123; 

V.   Otto,    132   Id.    97;   Standback    v.  Kruse  ?•.  Steffens,  47  Id.  112;  CJrum- 

Thornton,    106    Ga.    81;    French    v.  ley  t-.  Webb,  44  Mo.  444;  Roberts  v. 

Woodruff,    25  Colo.   340;   Brewer   r.  Roberts,    65    N.    C.    27;    Carter    v. 

Harrison,  27  Id.  349;  Smith  v.  Miller,  Thompson,    41    Ala.    375;    Harris    v. 

98   Va.   535;   Marquam   r.   Ross,   47  Parker,  Id.  604;  Scott  v.  Umbargcr, 

Or.  374.  41  Cal.  419;  Reed  v.  Aubrey,  91  Ga. 

-See  notes  to  Fox  r.  Mackreth,  1  435  (a  case  of  attempted  s:de  to  the 

Lead.  Cas.  Eq.  115,  and  Hill  on  Trus-  wife  of  the  trustee) ;  Taylor  v.  (ah  rrt, 

tecs,  248  (4th  Am.  cd.),  and  notes.  138  Ind.  67.    See,  however,  BirchvcH 

^See    Ycackd     r.     Litchfield,     13  r.  Cain,  1  Cold.  301. 
Allen,   419;   Go(-dcll  v.   Goodell,    173  « Campbell  v.  Walker,  5  Vcs.  eSO; 

Mass.  140;  Tanner's  Estate,  218  Pa.  13   Id.   601;   Davoue   r.   Fanning,    2 

361.  Johns.  Ch.  253;  Boerum  v.  Schcnck, 

<  See  Lazarus  r.  Bryson,  3  Binney,  41  N.  Y.  182;  Washington,  .V.  &  G. 

58;  and  Hall  /•.  Moore,  70  Miss.  75.  R.  R.  Co.  v.  Alexandria  &  W.  R.  R. 

5  Hill  on  Trustees,    159   (248,   4th  Co.,  19  Graft.  592;  Campbell  r.  Mc- 

Am.    ed.,   and    notes);    Michoud    v.  Lain,  51  Pa.  200;  French  r.  Pittsburg 

Girod,  4  How.  504;  Davoue  v.  Fan-  Vehicle    Co.,    184    Id.    163;    Ives    v. 

ning,  2  Johns.  Ch.  252;  Leisenring  v.  Ashley,  97  Mass.  198;  Dormitzer  v. 


IGO 


IMPLIED   TRUSTS. 


[part  I. 


The  purchase,  however,  may  be  affirmed  at  the  option  of  the 
cestui  que  trust ;  *  and  this  affirmance  may  be  imphed  by  acqui- 
escence after  knowledge,^  and  the  doctrine  under  consideration 
will  not  be  applied  where  the  acquisition  of  tmst  property  by 
the  trustee  is  in  pursuance  of  the  very  terms  of  the  trust. '"* 
iMoreover,  the  doctrine  is  not  without  limits.  It  is  not  to  be 
extended  so  as  to  prevent  one  who  stands  in  a  fiduciary  rela- 
tion from  taking  such  steps  as  are  necessary,  in  good  faith,  to 
protect  his  own  interests.  When,  therefore,  the  pledgee  of  a 
mortgage  was  requested  by  the  pledgor  (the  mortgagee)  to  pro- 
ceed to  foreclosure,  and  did  so,  and  notified  the  pledgor  that  he 
(the  pledgee)  would  bid  only  to  an  amount  sufficient  to  cover 
the  debt  due  him,  it  was  held  that  the  title  acquired  by  the 
pledgee  at  such  sale  was  free  from  any  trust  in  favor  of  the 
pledgor.'*  And  where  property  is  sold  at  a  trustee's  sale  and 
bought  by  a  stranger,  the  trustee  may  subsequently  purchase 
from  the  stranger,  provided  the  purchase  is  not  made  by  virtue 
of  some  arrangement  entered  into  at  or  prior  to  the  trustee's 
sale  and  there  is  no  element  of  bad  faith. ^  But  such  a  transac- 
tion should  be  subjected  to  close  scrutiny. 

It  is  a  disputed  point  whether  the  rule  applies  to  sales  made 
adversely  to  the  tmst.  Thus,  it  has  been  mled  that  if  a  trust 
estate  is  sold  under  an  adverse  judgment,  it  is  entirely  compe- 
tent for  the  trustee  to  bid.^    The  weight  of  authority,  how^ever, 


German  Savings  «&  Loan  Soc,  23 
Wash.  132,  222.  Even  if  the  trustee 
buys,  not  for  himself,  but  for  a  third 
party.  North  Bahimore  Build. 
Assoc'n  V.  Caldwell,  25  Md.  420. 

1  Ives  V.  Ashley  (supra) ;  Yeackel  r. 
Litchfield,  13  .\llen,  419;  Perry  on 
Trusts,  §  198;  Hill  on  Trustees,  249 
(4th  Am.  ed.). 

2  Hammond  v.  Hopkins,  143  U.  S. 
224;  Hoyt  v.  Lathpm,  Id.  553. 

3  Pattenson  r.  Lcnnig,  118  Pa.  571. 
<Plucker   v.   Teller,    174   Pa.   529. 

For  an  analogous  case,  see  Harrison 
V.  Mulvane,  62  Kan.  454.  See,  also, 
Cottingham  v.  Moore,  128  Ala.  209, 
and  Corbin  v.  Baker,  167  N.  Y.  128; 
Shreve  v.  McGowin,  143  Ala.  665. 

»  Voorhees  v.  Baily,  59  N.  J.  F^q. 
292. 


BFisk  V.  Sarber,  6  W.  &  S.  18; 
Chorpenning's  Appeal,  32  Pa.  315; 
Bruner  r.  Finley,  187  Id.  389;  Dyer  v. 
Shurtliff,  112  Mass.  165;  Hall  v.  Bliss, 
118  Id.  554;  Twin-Lick  Oil  Co.  v. 
Marbury,  91  U.  S.  590-595;  Allen  v. 
Gillette,  127  Id.  589;  Steinbeck  r.  Min- 
ing Co.,  152  Fed.  Rep.  333.  Downs 
V.  Rickards,  4  Del.  Ch.  416;  Hill  on 
Trustees,  160  (250,  4th  Am.  ed.). 
But  it  has  been  held  that  the  rule  in 
Fisk  V.  Sarber  does  not  apply  to  a  case 
in  which  the  judicial  sale  has  been 
brought  about  by  the  trustee;  Par- 
shall's  Appeal,  65  Pa.  235;  nor  where 
the  trustee  has  availed  himself  of  an 
advantage  of  any  kind,  the  benefit 
of  which  he  should  have  given  to  the 
cestui  que  trust.  Mullen  v.  Doyle,  147 
Pa.  512. 


CH.  III.] 


IMPLIED    TRUSTS. 


161 


is  perhaps  the  other  way; '  and  this  tendency  is  well  illustrated 
by  a  case  in  Michigan,  where  it  was  held  that  an  agent  for  the 
sale  of  real  estate  not  only  had  no  right  to  bid  it  in  for  himself 
at  a  foreclosure  sale,  but  that  he  could  not  free  himself  from 
this  disability  by  notifying  his  principal,  prior  to  the  sale,  that 
it  was  his  intention  to  bid.^ 

Trustees  are  very  frequently  allowed  by  order  of  court  to  bid 
at  their  own  sales,  but  in  so  doing  their  conduct  is  watched  with 
great  jealousy,^  and  if  they  use  trust  funds  in  the  purchase,  the 
profits  of  a  resale  will  be  held  to  belong  to  the  cestui  que  trust.* 

95.  Other  Constructive  Trusts. 

A  constructive  trust  will  also  arise  if  a  person  obtains  from 
a  trustee  the  tmst  property  without  paying  value  for  it,  although 
without  notice  of  the  trust.  In  such  a  case  he  will  be  held  to 
be  a  trustee  by  construction.^ 

A  constructive  trust  may  also  arise  under  a  contract.^  WTiere 
a  contract  has  been  entered  into  for  the  sale  of  an  estate,  equity, 
as  it  looks  upon  things  agreed  to  be  done  as  actually  performed,^ 
considers  the  vendor  as  a  tmstee  of  the  legal  title  for  the  pur- 
chaser, and  the  purchaser  as  a  trustee  of  the  purchase-money 
for  the  vendor.*  The  method  of  enforcing  these  trusts  is  by  a 
bill  to  compel  the  conveyance  of  the  legal  title,  or,  in  other 
words,  a  bill  for  specific  performance;  and  the  subject  will  be 
considered  when  that  equitable  remedy  is  treated  of.^ 

Constructive  trusts,  like  resulting  trusts,  do  not  fall  within  the 
Statute  of  Frauds.  Such  has  been  the  uniform  doctrine  of  the 
English  courts,  and  the  same  mle  has  been  adopted  in  this 
country.^"    Any  other  interpretation,  indeed,  would  be  in  con- 


1  Marshall  v.  Carson,  38  N.  J.  Eq. 
250.  See  Hill  on  Trustees,  ubi  supra; 
Perry  on  Trusts,  §  205. 

2  Kimball  v.  Ranney,  122  Mich. 
160. 

3  Cadwalader's  Appeal,  64  Pa.  293; 
Dundas's  Appeal,  Id.  325;  Tennant  v. 
Trenchard,  L.  R.  4  Ch.  App.  537-547. 

*  Baker's  Appeal,  120  Pa.  33. 

5  Hill  on  Trustees,  172. 

®  Money  or  property  contributed 
by  his  followers  to  the  founder  of  a 
church,  who  is  professedly  engaged 
in  extending  and  building  up  such 

11 


church,  cannot  be  claimed  by  him 
as  his  individual  property,  but  is 
impressed  with  a  trust  which  binds 
him  as  trustee  to  use  it  for  such  pur- 
pose, and  such  trust  may  be  enforced 
in  equity.  Holmes  v.  Dowie,  148 
Fed.  Rep.  634. 

7  Ante,  §  44. 

8  Hill  on  Trustees,  171. 

9  Infra,  Part  III.,  Chap.  I. 

10  Hill  on  Trustees,  59;  Plumer  v. 
Reed,  38  Pa.  46;  Beegle  v.  Wentz,  55 
Id.  369;  Seechrist's  Appeal,  66  Id. 
237;  Church  v.  Ruland,  64  Id.  442; 


162  IMPLIED    TRUSTS.  [PART   I. 

travention  rather  than  in  fulfilment  of  the  provisions  of  the 
statute ;  for  it  has  been  well  said  that  it  is  not  easy  to  see  how 
such  a  trust  could  be  established  except  by  parol  evidence,  and 
that  if  such  evidence  were  not  competent,  a  "statute  made  to 
prevent  frauds  would  become  a  most  potent  instrument  whereby 
to  give  them  success."  ^ 

Hoge  V.  Hoge,  1  Watts,  163;  Roby  v.  also,   Long  v.    Perdue,   83  Pa.   217; 

Colehour,  135  III.  300;  Giffen  i;.  Tay-  Haigh  v.  Kaye,  L.  R.  7  Ch.  App.  469; 

lor,  139  Ind.  573.  Davis  v.  Whitehead  [1894],  2  Ch.  133: 

1  Church    V.    Ruland,    svpra;    Si-  Story's  Equity  Jurisp.  §  1198. 
mond's   Estate,   201   Pa.  417.     See, 


CH,  IV.] 


TRUSTS   FOR  MARRIED   WOMEN. 


163 


CHAPTER  IV. 


TRUSTS   FOR  MARRIED   WOMEN. 


96.  Rights  of  husband  at  common 

law  in  wife's  property. 

97.  Statutory  changes. 

98.  Creation  of  trusts  for  sole  and 

separate  use. 

99.  Trustee  not  necessary. 

100.  No  particular  words  necessary. 

101.  Power  of  married  women  over 

separate  estate. 

102.  LiabiUty  of  separate  estate  to 

her  engagements. 

103.  Rules  in  the  United  States  upon 

this  subject. 

104.  Restraints  on  anticipation, 

105.  For  whose  benefit  separate  es- 

tates may  be  created. 


106.  Rules  in  the  United  States  upon 

this  subject. 

107.  General     conclusions;     Lewin's 

propositions. 

108.  Pin-money  trusts. 

109.  Wife's  equity  to  a  settlement. 

110.  How  enforced. 

111.  How  waived. 

112.  To  what  property  it  attaches. 

113.  Against   whom,   and   in    whose 

favor. 

114.  Gifts    from    husband    to    wife; 

contracts. 

115.  Contracts  for  separation. 


96.  Rights  of  husband  at  common  law  in  wife's  property. 

It  is  well  known  that  at  common  law  a  husband  acquired 
a  life  estate  as  tenant  by  the  curtesy  of  England  in  his  wife's 
inheritable  estates  in  realty,  provided  there  was  issue  of  the 
marriage  born  alive, ^  that  he  had  power  to  alien  her  chattels 
real,  and  that  he  also  became  entitled  to  her  personal  property 
in  possession,  and  to  her  choses  in  action,  provided  he  reduced 
them  into  possession  during  coverture,  or  by  administration,  if 
he  survived  her. 

This  was  the  case  not  only  as  to  the  property  of  a  feme  covert 
of  which  she  held  the  legal  title,  but  also  as  to  that  in  which 
she  had  only  an  equitable  interest.  If,  for  example,  a  fund 
were  held  by  a  trustee  for  the  benefit  of  a  woman,  and  she  were 
to  marry,  her  husband  would  have  had  the  right  to  demand 
payment  to  himself,  and  his  receipt  would  have  been  a  suffi- 
cient discharge.^ 


1  In  many  states  of  the  Union 
birth  of  issue  is  no  longer  a  requisite 
to  tenancy  by  the  curtesy. 


2  Hill  on  Trustees,  407;  Perry  on 
Trusts,   §  626. 


104  TRUSTS   FOR  MARRIED   WOMEN.  [PART  I. 

This  right  of  the  husband  was,  however,  subject  to  this  quah- 
fication,  viz.,  that  if,  in  order  to  reach  the  equitable  property 
of  the  wife,  he  were  obhged  to  come  into  the  Court  of  Chancery, 
equity  would  compel  him,  at  her  request,  to  make  a  suitable 
])rovision  for  herself  and  her  children.^  This  right  of  the  wife 
was  what  is  known  as  her  equity  to  a  settlement.  It  grew  out 
of  the  general  maxim  that  he  who  seeks  the  aid  of  a  court  of 
equity  must  do  equity;  and  was,  therefore,  at  first  supposed  to 
be  enforceable  against  the  husband  only  in  those  instances 
wherein  he  was  compelled  to  resort  to  the  assistance  of  a  chan- 
cellor for  the  purpose  of  reaching  his  wife's  property.  It  was, 
however,  decided  in  Elibank  v.  Montolieu  that  the  benefit  of 
this  rule  could  be  claimed  by  the  wife  as  plaintiff,  and  this  is 
now  settled  law.' 

97.  Statutory  changes. 

The  English  conmion-law  rule  existed  originally  in  most 
of  the  United  States.  It  has,  however,  in  many,  if  not  all  of 
them,  been  altered  by  statute,  and  the  property  of  married 
women  has  been  freed  from  the  grasp  of  the  husband's  authority 
and  from  liability  for  his  debts  and  engagements ;  and  in  England, 
also,  the  common-law  rights  of  the  husband  in  his  wife's  property 
have  been  modified  in  a  like  manner,  by  the  Married  Women's 
Property  Acts  of  1882  and  1893,  by  which  the  property  of  a 
married  woman  is  absolutely  secured  to  her,  and  the  interven- 
tion of  a  trustee  is  unnecessary.^  Moreover,  both  in  England 
and  in  the  United  States,  the  poicer  of  a  marrietl  woman,  in 
respect  of  her  property,  has  undergone  an  eciually  radical  change ; 
for  ii  feme  covert  in  England  may  now,  without  the  intervention 
of  a  trustee,  dispose  by  will  or  otherwise,  of  any  property,  real 
or  personal,  as  if  she  was  a,  feme  sole;  Avhile  in  many  states  of  the 
Union  statutory  provisions  of  an  equally  liberal  character  exist.'* 

08.  Creation  of  trusts  for  sole  and  separate  use. 

Reasons  similar  to  those  which  have  led  to  these  legislative 
enactments  had  long  ago  in  England  induced  the  Court  of 
Chancery  to  interpose  its  extraordinary  jurisdiction  for  the  pro- 

1  Elibank    v.    Montolieu,    1    Lead.  Id.,  c.  63.     See  Lewin  on  Trusts,  921 

Cas.  Eq.  623,  and  post,  §  109.  (10th  Eng.  ed.). 

-  Elibank  v.  Montolieu,  5  Ves.  737.  <  Davies  v.  Jenkins,  6  Ch.  D.  728; 

345  and  46  Vict.,  c.  75;  56  and  57  Morrell  v.  Cowan,  Id.  166.     See  notes 


CH.    IV.]  TRUSTS    FOR    MARRIED    WOMEN,  165 

tection  of  married  women,  and  this  object  was  effected  by  the 
creation  of  what  is  now  so  well  known  as  the  equitable  separate 
estate  oi femes  covert — which  not  only  owes  its  existence  to  equity, 
but  which  is  governed,  in  many  particulars,  by  rules  differing 
from  those  which  are  incidental  to  ordinary  legal  and  equitable 
estates,  and  which  the  courts  have  found  necessary  to  lay  down 
in  order  to  attain  the  desired  end. 

This  equitable  separate  estate  may  be  defined  to  be  an  estate 
created  by,  and  originally  recognized  only  in,  courts  of  equity 
for  the  purpose  of  securing  the  beneficial  enjoyment  of  property 
to  a  woman  during  coverture — this  purpose  being  effected 
through  the  medium  of  a  trust  whereby  the  ordinary  marital 
rights  of  the  husband  over  his  wife's  property  are  excluded,  so 
far  as  the  same  are  in  contravention  of  the  feme's  enjoyment  of 
her  estate.^ 

It  will  be  seen,  hereafter,  that  while  the  objects  which  the 
courts  had  in  view,  in  creating  the  equitable  separate  estate, 
were  to  exclude  the  husband's  control,  to  free  the  property 
from  liability  for  his  debts,  and  to  secure  to  the  wife  its  bene- 
ficial ownership,  yet  the  decisions  upon  this  subject  have  not 
been  uniformly  successful  in  accomplishing  the  desired  results. 

It  may  be  observed  here  that  while  the  separate  use  trust  is 
of  an  exceptional  character,-  yet  it  is  based  upon  very  broad 
principles  which  occasionally  manifest  themselves  in  other  equi- 
table doctrines  as  much  at  variance  with  the  ordinary  common- 
law  rules  as  the  one  now  under  consideration.  Thus,  it  has 
been  pointed  out  by  a  learned  judge  that  not  unfrequently  a 
strife  occurs  between  the  will  of  the  donor  and  the  public  policy 
which  forbids  a  restraint  upon  alienation,  or  which  renders 
property  in  which  a  party  has  a  beneficial  interest  subject  to 
the  grasp  of  his  creditors.  Yet  it  has  occurred  in  many  instances 
that  both  of  these  branches  of  public  policy  have  been,  to  a 
certain  extent,  infringed,  because  equity  has  thought  it  right 
to  allow  a  donor  to  make  a  gift  upon  such  terms,  and  subject 
to  such  restrictions,  as  he  might  see  fit.^ 

to  Hulme  v.  Tenant,  1  Lead.  Cas.  Eq.  in  pursuance  of  an  antenuptial  con- 

481  (4th  Eng.  ed.).  tract,  no  policy  of  the  law  is  violated. 

1  When  the  legal  title  is  vested  in  It  is  simply  the  fulfillment  of  a  con- 
the  feme  there  is  no  separate  estate.  tract.  Lewin  on  Trusts,  920  (10th 
Todd's  Appeal,  24  Pa.  429.  Eng.  ed.). 

2  When  the  settlement  to  the  sepa-  3  See  Wells  v.  McCall,  64  Pa.  212 
rate  use  of  a  married  woman  is  made  {per  Agnew,  J.);  Dodson  v.  Ball,  60 


IGO 


TRUSTS    FOR   MARRIED    WOMEN. 


[part  I. 


99.  Trustee  not  necessary. 

It  has  been  stated  already  that  the  object  of  securing  to 
a  wife  the  enjoyment  of  her  estate  was  effected  through  the 
medium  of  a  trust.  Wherever  there  is  an  intention  to  create  a 
trust,  and  that  intention  is  manifested  by  apt  words,  the  use 
will  not  be  executed  in  the  wife.^  It  is  not,  however,  necessary 
that  a  trustee  should  be  expressly  nominated.  It  was,  indeed, 
at  one  time  doubted  whether  a  trustee  would  not  be  necessary,- 
but  it  is  now  settled  that  where  there  is  a  gift  to  a  married 
woman,  and  no  trustee  is  named,  the  husband  will  be  consid- 
ered the  trustee ;  ^  especially  if  the  gift  be  from  him  directly  to 
the  wife,  for  in  this  last  case  the  gift  could  be  supported  in  no 
other  way."*  But  while  a  trustee  is  not  necessary,  it  is  essential 
that  there  should  be  a  trust;  in  other  words,  it  is  imperative 
that  there  should  be  a  separation  of  the  estate  into  its  legal  and 
equitable  elements,  and  that  the  latter  only  should  vest  in  the 
wife.  If  the  legal  estate  becomes  vested  in  the  feme,  it  is  im- 
possible to  exclude  the  rights  of  the  husband,^  or  to  trammel 
the  power  of  the  wife.^ 


Id.  492;    Jourdan  v.  Dean,   175  Id. 
599. 

1  See  Ware  v.  Richardson,  3  Md. 
553,  and  Ayer  v.  Ayer,  16  Pick.  327, 
where  the  subject  is  well  discussed. 

2  By  Lord  Cowper  in  Harvey  v. 
Harvey,  1  P.  Wms.  125. 

a  Bennet  v.  Davis,  2  P.  Wms.  316; 
Parker  v.  Brooke,  9  Ves.  583;  Jami- 
son r.  Brady,  G  S.  &  R.  466;  Varner's 
Appeal,  8U  Pa.  140;  Barron  r.  Barron 
24  Vt.  375;  Long  v.  White,  5  J.  J. 
Marsh.  226;  Trenton  Banking  Co.  r. 
Woodruff,  1  Green  Ch.  210;  Steel 
V.  Steel,  1  Ired.  Eq.  452;  Freeman  v. 
Freeman,  9  Mo.  772;  Hamilton  v. 
Bishop,  8  Yerg.  3:5;  Fear.s  v.  Brooks, 
12  Cia.  195;  Whitten  r.  Jenkins,  34  Id. 
297;  Miller  v.  Miller's  Admtr.,  92  Va. 
510;  Hill  on  Trustees,  628  (4th  Am. 
ed.);  Perry  on  Trusts,  §  647. 

*  Steel  V.  Steel,    1    Ired.   Eq.   452. 
455;  McKennan  v.  Phillips.  6  Whart. 
571 ;  Boykin  v.  Ciples,  2  Hill  Ch.  200 
Baskins    v.    Giles,    Rice's    Eq.    316 
Long  V.  White,  5  J.  J.  Marsh.  226; 


Trenton  Banking  Co.  v.  Woodruff,  1 
Green  Ch.  118;  Freeman  r.  Free- 
man, 9  Mo.  772;  Hamilton  v.  Bishop, 

8  Yerg.  33;  Heck  v.  Clippenger,  5  Pa. 
385;  Shirley  v.  Shirley,  9  Paige  Ch. 
364.     See,  however,  Wade  v.  Fisher, 

9  Rich.  Eq.  .362,  where  the  gift  was 
not  upheld.  In  Penna.  Salt  Co.  v. 
Neel,  54  Pa.  17,  such  a  conveyance 
was  sustained  in  a  common-law  ac- 
tion. A  conveyance  of  lands  made 
by  a  husband  to  his  wife  in  the  usual 
form  without  any  words  indicating 
an  intention  to  do  so,  by  necessary 
implication,  and  as  a  matter  of  law, 
vests  in  the  wife  a  technical  separate 
e.state  in  the  premises  conveyed. 
Barnum  v.  Le  Master,  110  Tenn. 
638. 

5  Bush  V.  Allen,  5  Mod.  63;  Harton 
V.  Harton,  7  Term  R.  652;  Williams 
V.  Waters,  14  Mees.  &  Wels.  166; 
Ware  v.  Richardson,  3  Md.  552; 
Todd's  Appeal,  24  Pa.  429. 

«  Warden  v.  Lyons,  118  Pa.  398. 


CH.  IV.] 


TRUSTS    FOR   MARRIED   WOMEN. 


167 


100.  No  particular  words  necessary. 

No  particular  form  of  words  is  necessary  to  create  a  trust 
for  the  benefit  of  a.  feme  covert. 

According  to  the  modern  Enghsh  authorities,  the  most  apt 
word  to  create  such  a  trust  is  "separate;"  which  has  a  fixed 
and  technical  meaning,  and  which  will,  of  itself,  exclude  the 
marital  rights;  whereas  the  same  fixed  and  technical  meaning 
is  not  attributable  to  "sole."  ^  And  it  may  be  stated,  in  general, 
that  the  instrument  must  manifest  a  design  to  exclude  the  hus- 
band, or  must  contain  expressions  inconsistent  with  his  marital 
rights  in  respect  of  the  property.' 

Any  form  of  expression,  however,  indicative  of  an  intention 
to  confer  the  beneficial  enjoyment  upon  the  wife,  and  to  exclude 
the  rights  of  the  husband,  will  be  enough.-*  It  would  be  almost 
impossible  to  give  all  the  expressions  which  have  been  held  to 
be  sufficient;  the  following  are  instances:  "for  her  sole  and 
separate  use;"''  "for  her  own  use  and  benefit  independent  of 
any  other  per.son;"  '"'  her  husband  "to  have  no  control;"  ^  "  for 
the  use,  maintenance,  and  support;"  '  "solely  for  her  own  use;"  * 


1  See  Gilbert  v.  Lewis,  1  De  G.,  J. 
&  Sm.  38;  Lewis  v.  Mathews,  L.  R. 
2  Eq.  177;  Massy  v.  Bowen,  L.  R. 
4  H.  L.  288.  As  to  "separate,"  see, 
also,  Scott  V.  Bryan,  194  Pa.  46. 

2  Rudisell  v.  Watson,  2  Dev.  Eq. 
430;  Ashcraft  v.  Little,  4  Ired.  Eq. 
236,  238;  Williams  v.  Claiborne,  7 
Sm.  &  Marsh.  488;  Carroll  v..  Lee,  3 
Gill.  &,  J.  505;  Roane  v.  Rives,  15 
Ark.  330;  Nightingale  v.  Hidden,  7 
R.  L  115;  Evans  v.  Knorr,  4  Rawle, 
66;  Evans  v.  Gillespie,  1  Swan.  128; 
Cook  V.  Kennerly,  12  Ala.  42;  Hale 
V.  Stone,  14  Id.  803;  Turton  v.  Tur- 
ton,  6  Md.  375;  Brandt  v.  Mickle, 
28  Id.  436;  Tritt  v.  Colwell,  31  Pa. 
228. 

3  Stuart  V.  Kissam,  2  Barb.  494; 
West  V.  West,  3  Rand.  378;  Lewis  v. 
Adams,  6  Leigh,  320;  Perry  v.  Boil- 
eau,  10  S.  «Sc  R.  208;  Ballard  v.  Tay- 
lor, 4  Dess.  550;  Davis  r.  Cain,  1 
Ired.  Eq.  305;  Heathman  r.  Hall,  3 
Id.  414;  Hamilton  v.  Bishop,  8  Yerg. 
33;    Beaufort  v.   Collier,   6   Humph. 


487;  Somers  v.  Craig,  9  Id.  467;  Nixon 
V.  Rose,  12  Gratt.  425;  Williams  v. 
Avery,  38  Ala.  115;  Clark  v.  Maguire, 
16  Mo.  302;  Boal  v.  Morgner,  40 
Id.  48;  Duffield's  Appeal,  168  Pa. 
171. 

*  Parker  v.  Brooke,  9  Ves.  583; 
Archer  v.  Rorke,  9  Ir.  Eq.  478. 

5  Margetts  v.  Barringer,  7  Sim.  482. 
See,  also,  Pepper  v.  Lee,  53   Ala.  33. 

« Edwards  v.  Jones,  14  Weekly 
Rep.  815;  see  Craig  v.  Watt,  8  Watts, 
498;  Keating  v.  McAdoo,  180  Pa.  5; 
Lewis  V.  Brice,  187  Id.  362. 

7  Good  V.  Harris,  2  Ired.  Eq.  630. 
See,  also,  for  the  same  or  nearly  iden- 
tical expression,  Newman  r.  James, 
12  Ala.  29;  Warren  r.  Haley,  1  Sm. 
&  Marsh.  Ch.  647;  Heathman  r.  Hall, 
3  Ired.  Eq.  414;  Griffith  v.  Griffith, 
5  B.  Mon.  113. 

*  Jamison  v.  Brady,  6  S.  &  R.  466; 
Snyder  i'.  Snyder,  10  Pa.  423;  Jarvis 
V.  Prentice,  19  Conn.  273;  Good- 
rum  V.  Goodrum,  8  Ired.  Eq.  313; 
Cuthbert    v.    Wolfe,     19    Ala.    373; 


168 


TRUSTS   FOR   MARRIED    WOMEN. 


[part  1. 


"for  her  sole  use,  benefit,  and  behoof;"  ^  "absolutely;"  ^  "hei 
receipt  to  be  a  sufficient  discharge;"  ^  "to  be  paid  to  her  when 
she  is  divorced  from  her  husband  or  voluntarily  withdraws  from 
him;"  •*  for  the  sole  and  only  use  and  benefit  of  the  wife.^ 

On  the  other  hand,  the  following  have  been  considered  as 
insufficient  to  raise  a  trust:  "to  her  use;"  ^  "to  her  own  use;"  ' 
"to  her  heirs  and  assignees,  for  her  or  their  own  sole  use;"** 
"for  her  use  and  benefit;"^  "but  the  said  gift  extends  to  no 
other  person."  ^" 

Whether  a  provision  that  the  property  "is  not  to  be  liable  to 
her  husband's  debts,"  will  be  enough  to  create  a  separate  trust, 
cannot  perhaps  be  declared  with  certainty,  as  the  authorities 
are  not  uniform. ^^ 

The  fact  that  the  estate  is  given  to  the  feme  jointly  with 
others  will  not  prevent  it  from  being  an  estate  to  the  sole  and 
separate  use.^^ 

It  is  obviously  improper  to  lay  down  any  authoritative  rules 
by  which  all  the  decisions  upon  this  subject  can  be  reconciled. 
But  the  classification  suggested  in  Nix  v.  Bradley  ^^  seems  to  be 
highly  satisfactory.  It  was  there  said  that  the  expressions 
whereby  a  separate  estate  could  be  created  might  be  grouped 
into  three  classes:  1st.  Where  the  technical  words  "sole  and 
separate  use,"  or  equivalent  words,  are  used.  2d.  Where  the 
marital  rights  are  expressly  excluded.  3d.  Where  the  wife  is 
empowered  to  perform  acts  concerning  the  estate  given  to  her 
inconsistent  with  the  disabilities  of  coverture. 


Stuart  V.  Kissam,  2  Barb.  494;  Scott  8  Lewis  v.  Mathews,  L.  R.  2  Eq. 


r.  Bryan,  194  Pa.  46. 

1  Williman  v.  Holmes,  4  Rich.  Eq. 
479. 

2  Shewell  v.  Dwarris,  Johns.  172; 
Brown  v.  Johnson,  17  Ala.  232. 

3  Lee  V.  Prieaux,  :',  Bro.  Ch.  381; 
Stanton  v.  Hall,  2  R.  &  M.  180; 
( 'harles  v.  Coker,  2  S.  C.  122. 

*  Perry  v.  Boileau,  10  S.  &  R.  208. 

5  Cadematori  v.  Ganger,  160  Mo. 
352. 

«  Jacobs  V.  Amyatt,  1  Mad.  376,  n.; 
Torbert  v.  Twining,  1  Yeates,  432; 
Tennant  v.  Stoney,  1  Rich.  Eq.  222. 

^  Johnes  v.  Lockhart,  3  Bro.  Ch. 
383,  n. 


177;  but  see  Williman  v.  Holmes,  4 
Rich.  Eq.  475;  Rudisell  v.  Watson,  2 
Dev.  Eq.  430;  Houston  v.  Embry,  1 
Sneed,  480.  See,  also,  Tyler  v.  Lake, 
4  Sim.  144. 

9  Fears  v.  Brooks,  12  Ga.  198;  Cle- 
venstine's  Appeal,  15  Pa.  499. 

10  Ashcraft  r.  Little,  4  Ired.  Eq.  236. 

11  Gillespie  v.  Burleson,  28  Ala. 
551;  Lewis  i\  Elrod,  38  Id.  17; 
Martin  r.  Bell,  9  Rich.  Eq.  42; 
Young  V.  Young,  3  Jon.  Eq.  216. 

12  Metropolitan  Bank  v.  Taylor,  53 
Mo.  444;  Burnley  v.  Thomas,  63  Id. 
392. 

13  6  Rich.  Eq.  48. 


CH.  IV.]  TRUSTS   FOR   MARRIED    WOMEN.  169 

It  must  remembered,  moreover,  that  the  intent  to  create  a 
separate  estate  must  exist,  and  that  words,  which  might  other- 
wise have  been  considered  apt  words  to  create  a  separate  estate, 
will  not  have  that  effect,  if  it  appears  from  the  instrument  that 
a  separate  use  was  not  intended  to  be  created.  Thus  in  Lippin- 
cott  V.  Mitchell  ^  the  words  "sole  and  proper  use,  benefit,  and 
behoof"  of  the  wife  were  relied  upon  as  creating  a  separate 
estate.  But  these  words  occurred  in  the  habendum  of  the  deed, 
and  were  simply  the  ordinary  conveyancing  form  of  expression 
which  occurs  in  that  portion  of  the  document.  It  was,  there- 
fore, held  that  no  separate  use  was  created. 

101.  Power  of  married  women  over  separate  estate. 

It  was  said  above,  that  the  objects  sought  to  be  attained  by 
the  trusts  now  under  consideration  were  very  nearly  defeated 
by  the  construction  which  the  English  Court  of  Chancery  placed 
upon  the  authority  and  powers  of  the  jeme  over  property  so 
hmited.  This  construction  was  that  a,  feme  covert  was,  as  to  her 
sole  and  separate  estate,  to  be  regarded  as  a,  feme  sole,  and  that 
therefore  she  had  the  same  power  of  disposition  over  the  estate, 
and  was  subject  to  the  same  liabilities  in  regard  to  it,  as  if  she 
were  unmarried. 

Her  power  of  disposing  of  her  estate  was  settled  by  many 
authorities. 

''The  first  case  upon  the  subject,"  said  Lord  Thurlow  in 
Fettiplace  v.  Gorges,^  "is  a  very  old  one  in  Tothill;  that  when 
a  woman  from  her  separate  stock  has  saved  a  sum  of  money, 
she  may  dispose  of  it.  I  know  there  is  a  vast  number  of  cases 
upon  it ;  but  I  have  always  thought  it  settled  that  from  the  mo- 
ment a  woman  takes  personal  property  to  her  sole  and  separate 
use,  from  the  same  moment  she  has  the  sole  and  separate  right  to 
dispose  of  it."  And  this  right  may  be  exercised  by  a  disposition 
inter  vivos;  ^  or  by  will.-*  This  power  of  disposition  was  formerly 
supposed  to  apply  only  to  personalty,  and  to  a  life  interest  in 
realty;  but  it  is  now  held  in  England  that  the /ewe  is  entitled  to 
dispose  of  the  corpus  of  her  real  estate ;  ^  and  that,  too,  by  will 

1  94  U.  S.  767.  See,  also,  MacCon-  5  Taylor  v.  Meads,  34  L.  J.  Ch.  203; 
iiell  V.  Wright,  150  Pa.  275.                        11  Jur.  n.  s.  166;  4  De  G.,  J.  &  Sm. 

2  1  Ves.  Jr.  48.  597.  See,  also,  Hall  v.  Waterhouse,  5 
aWagstaff  v.  Smith,  9  Ves.  520.  Giff.  64;  Pride  v.  Bubb,  L.  R.  7  Ch. 
*  Rich  V.  Cockell,  9  Ves.  369.                  64. 


170  TRUSTS    FOR   MARRIED    WOMEN.  [PART   I. 

or  by  deed  not  acknowledged  according  to  the  formalities  of 
the  statute.'  In  other  words,  a  gift  of  a  fee-simple  estate  or  a 
gift  of  a  capital  sum  of  money  to  the  separate  use  of  a  married 
woman  gives  lier  the  same  power  of  alienation  over  it  as  if  she 
were  a  single  woman.'  This  was  decided  in  the  year  1865,  in 
the  leading  case  of  Taylor  v.  Meads,  just  cited,  and  the  rule 
upon  the  subject  was  there  stated  by  the  Chancellor  (Lord 
Westbury)  in  the  following  language:  "With  respect  to  sepa- 
rate property,  the  fer7ie  covert  is,  by  the  form  of  trust,  released 
and  freed  from  the  fetters  and  disability  of  coverture,  and  in- 
vested with  the  rights  and  powers  of  a  person  who  is  sid  jiiris. 
To  every  estate  and  interest  held  by  a  person  who  is  sui  juris 
the  conunon  law  attaches  a  right  of  alienation,  and  accordingly 
the  right  of  a  feme  covert  to  dispose  of  her  separate  estate  was 
recognized  and  admitted  from  the  beginning  until  Lord  Thur- 
low  devised  the  clause  against  anticijjation.  But  it  would  be 
contrary  to  the  whole  principle  of  the  doctrine  of  separate  use 
to  reijuire  the  consent  or  concurrence  of  the  husband  in  the  act 
or  instrument  by  which  the  wife's  separate  estate  is  to  be  dealt 
with  or  disposed  of.  That  would  be  to  make  her  subject  to  his 
control  or  interference.  The  whole  matter  lies  between  a  mar- 
ried woman  and  her  trustees;  and  the  true  theory  of  her  alien- 
ation is  that  any  instrument,  be  it  deed  or  writing,  when  signed 
l)y  her,  operates  as  a  direction  to  the  trustee  to  convey  or  hold 
the  estate  accortling  to  the  new  trust  which  is  created  by  such 
direction.  This  is  sufficient  to  convey  the  feme  covert's  equi- 
table interest.  When  the  trust  thus  created  is  clothed  by  the 
trustees  with  the  legal  estate,  the  alienation  is  complete  both  at 
law  and  in  equity." 

102.  Uahility  of  separate  estate  to  her  engagements. 

The  same  line  of  reasoning,  which  induced  the  English  courts 
of  equity  to  recognize  the  poirer  of  a  married  woman  to  alienate 
her  separate  estate,  has  also  led  to  a  recognition  of  the  liability 
of  this  estate  to  the  engagements  of  the  feme.  The  separate 
j)rop('rty  of  a  married  woman  being  a  creature  of  equity,  it 
follows  that,  if  she  has  the  power  to  deal  with  it,  she  has  the 

1  Taylor    r.     Meads,    4   De  G.,    J.  Ins.   Co.   v.  Marshall,    32  N.  J.   Eq. 

&  Sm.    5*»7:    Hall    r.    Watcrhou.se,    .')  lO:]. 

Giff.    ti4,    Pride    /.•  Bubh.     I..    R.    7  '^  Per  Sir  George   Jessel,  M.R.,  in 

Ch.  64,  and  Hoina>opathic  Mut.  Life  Cooper  v.  Macdonald,  7  Ch.  D.  293. 


CH.  IV.]  TRUSTS   FOR   MARRIED    WOMEN.  171 

other  power  incident  to  property  in  general,  viz.,  the  power  of 
contracting  debts  to  be  paid  out  of  it;  and  equity  will  lay  hold 
of  the  separate  estate  as  the  only  means  by  which  those  debts 
can  be  satisfied.^  This  liability  was  at  first  supposed  to  exist 
only  when  the  feme  had  executed  some  obligation  under  seal;' 
but  the  courts  have  now  reached  the  conclusion  that  the  same 
liability  exists  in  respect  of  a  mere  verbal  engagement,  and  that 
when  a  married  woman  enters  into  an  agreement,  she  allows  the 
supposition  to  be  made  that  she  intends  to  pei'form  the  agree- 
ment out  of  her  property,  and  that  she  creates  a  debt  which  may 
be  recovered,  not  by  reaching  her,  but  by  reaching  her  property.^ 
When  a  man  contracts  debts,  both  his  person  and  his  property 
are  by  law  liable  to  the  payment  of  them.  A  court  of  equity, 
having  created  a  separate  estate,  has  enabled  a  married  woman 
to  contract  debts  in  respect  of  it.^  Her  person  cannot  be  made 
liable,  either  in  law  or  in  equity,^  but  in  equity  her  property  may. 
A  court  of  equity  gives  execution,  therefore,  against  the  property, 
just  as  a  court  of  law  gives  execution  against  the  property  of 
other  debtors.  These  are  the  views  expressed  by  Lord  Justice 
Turner,  in  Johnson  v.  Gallagher,'*  and  must  now  be  taken  as 
the  settled  law  of  England  upon  the  subject.''  It  must  Ix'  here 
observed  that  the  courts  have  not  yet  gone  to  the  length  of 
holding  that  a  mere  general  engagement  of  a  married  woman 

1  Hulme  V.  Tenant,  1  Lead.  Cas.  credit  upon  the  possession  of  the  es- 
Eq.  679  (481,  4th  Eng.  ed.);  Owens  tat«,  but  this  was  subsequently  over- 
V.  Dickinson,  1  Cr.  &  Ph.  48;  Perkins  ruled  in  Marshall  v.  Rutton,  S  T.  R. 
V.  Elliott,  23  N.  J.  Eq.  529.  545. 

2  Hulme  V.  Tenant,   1   Bro.  C.  C.  63  De  G.,  F.  &  J.  509. 

16.  ^  See    the    opinions    of    the    Lord 

3  Picard  v.  Hine,  L.  R.  5  Ch.  274;  Chancellor,  Hatherly,  and  of  Lord 
Johnson  v.  Gallagher,  3  De  G.,  F.  &      Justice  Sir  G.  M.  Giffard,  in  Picard  ?'. 


J.,  494;  London  Bank  of  Australia  v 
Lempriere,  L.  R.  4  Priv.  Coun.  App 
572;  Murray  v.  Barlee,  3  M.  &  K.  209 
Matthewman's  Case,  L.  R.  3  Eq.  781 
Shattock  V.  Shattock,  L.  R.  2  Eq 


Hine,  L.  R.  5  Ch.  274.  See,  also, 
London  Bank  of  .\ustralia  ?•.  Lem- 
priere, L.  R.  4  Priv.  C.  App.  572; 
Harvey's  Estate  (Godfrey  v.  Harben), 
13  Ch.  Div.  216;  Hodgson  v.  William- 


182.  son,  15  Id.  89;  In  re  Lady  Hastings, 
<See  Price  v.  Planters'  Nat.  Bank,  35  Id.  101.  A  contract  of  a  married 
92  Va.  468.  woman,  where  it  binds  her  separate 
5  It  had  been  decided  in  Corbett  v.  estate,  binds  only  that  of  wliich  she 
Poelnitz,  1  T.  R.  5,  that  an  action  at  was  possessed  at  the  time  of  the  con- 
common  law  would  lie  when  the  wife  tract.  Pike  v.  Fitzgibbon,  17  Ch.  D. 
has  a  separate  maintenance  and  lives  454.  In  Massachusetts,  see  Rogers  v. 
apart  from  her  husband,  and  receives  Ward,  8  Allen,  389. 


172 


TRUSTS    FOR    MARRIED    WOMEN. 


[fart  I. 


will  in  all  cases  affect  her  separate  estate.^  On  the  contrary, 
it  has  been  expressly  decided  that  the  contract  of  a  married 
woman  can  be  made  good  only  out  of  the  separate  estate  which 
is  hers  at  the  time  of  the  contract;  and  this  conclusively  shows  that 
the  engagement  is  not  to  be  treated,  in  all  respects,  as  the  under- 
taking of  one  sui  juris}  The  true  view  seems  to  be  that  such  an 
engagement  will  be  binding  if  it  appears  that  it  was  made  with 
reference  to,  and  upon  the  faith  and  credit  of,  her  separate  estate ; 
but  that  whether  it  was  so  or  not  is  a  question  to  be  judged  of 
by  the  court  under  all  the  circumstances  of  the  case.  The  fact 
that  the.  feme  is  living  separate  from  her  husband,  and  is  known 
not  to  be  receiving  maintenance  from  him,  is  considered  evi- 
dence to  show  that  the  contract  was  made  with  reference  to 
her  separate  estate.*'' 

It  was  at  one  time  supposed  that  the  contract  of  a  feme  covert 
operated  as  an  appointment  of  her  separate  estate ;  '^  but  this 
idea  is  now  exploded,^  as  it  is  manifest  that  to  hold  such  a  doc- 


1  "The  principle,  as  I  have  always 
understood  it,"  said  Sir  George  Jessel, 
M.  R.,  in  Wainford  v.  Heyl,  L.  R.  20 
Eq.  324,  "is  this:  a  married  woman  is 
liable — or  rather  her  separate  estate 
is  liable  (for  there  is  no  personal  lia- 
bility as  far  as  she  is  concerned) — to 
make  good  all  contracts  which  are 
made  by  her  with  express  reference 
to  her  separate  estate,  or  which  from 
the  nature  of  the  contract  itself  must 
be  intended  to  be  so  referred;  but  she 
is  not  liable  even  for  general  con- 
tracts which  cannot  be  referred;  a 
fortiori  she  is  not  liable  for  general 
torts,  but  her  husband  is  liable.  Her 
separate  estate  may  be  liable  for  a 
fraud  relating  to  the  separate  estate, 
that  is,  dealing  with  the  separate  es- 
tate by  way  of  fraudulent  representa- 
tion. Again,  the  estate  may  be 
made  liable  for  an  actual  appropria- 
tion of  funds  subject  to  the  same 
settlement  and  the  same  trusts  which 
create  the  separate  estate.  That,  I 
understand,  is  the  decision  in  Clive 
V.  Carew,  1  J.  &  H.  199.  But  apart 
from  such  cases  as  these,  one  cannot 


conceive  why  she  should  be  made 
liable  for  general  torts  in  reference 
to  trusts  any  more  than  for  general 
torts  at  law." 

2  Pike  V.  Fitzgibbon,  17  Ch.  D.  454; 
King  V.  Lucas,  23  Id.  712;  Ankeney  v. 
Hannon,  147  U.  S.  130;  Filler  v.  Tyler, 
91  Va.  458. 

3  Picard  v.  Hine;  Johnson  v.  Galla- 
gher, ut  sup.;  Johnson  v.  Cummins,  16 
N.  J.  Eq.  97,  and  Harri.son  v.  Stewart, 
18  Id.  451.  See  Dodge  v.  Knowles, 
114  U.  S.  430,  and  Chaffee  v.  Browne, 
109  Cal.  211. 

*  Clark  1'.  Miller,  2  Atk.  379;  Mur- 
ray V.  Barlee,  4  Sim.  82,  by  Sir  L. 
Shadwell,  V.  C. 

5  Johnson  v.  Gallagher  (supra);  In 
re  Roper,  39  Ch.  D.  482.  A  debt 
contracted  by  a  married  woman,  pay- 
able out  of  her  separate  estate,  is 
barred  by  the  same  lapse  of  time  in 
which  an  ordinary  debt  arising  from 
a  simple  contract  would  be  barred  by 
the  Statute  of  Limitations,  the  Court 
of  Chancery  acting  herem  by  anal- 
ogy. In  re  Lady  Hastings,  35  Ch.  D. 
94. 


CH.  IV.]  TRUSTS    FOR   MARRIED   WOMEN.  173 

trine  would  lead  to  the  conclusion  that  the  debts  were  to  be  paid 
in  the  order  of  their  creation,  whereas  they  all  stand  on  an  equal 
footing,  and  are  paid  yari  passu} 

103.  Rules  ill  the  United  States  upon  this  subject. 

In  the  United  States  the  decisions  upon  the  power  of  a  feme 
covert  over  her  separate  estate,  and  its  liability  to  her  engage- 
ments, have  not  been  uniform.  The  first  departure  from  the 
English  rule  was  in  South  Carolina,  in  the  year  1811.  In  the 
case  of  Ewing  v.  Smith  ^  the  Court  of  Appeals  (overruhng  the 
decision  of  Chancellor  Dessaussure)  held  that  a  Jeme  covert  had 
no  powers  over  her  separate  estate  except  those  which  had  been 
given  to  her  by  the  trust  instrument,  and  that  the  powers  con- 
ferred must  be  strictly  pursued.  This  decision,  with  the  ex- 
ception of  a  doubt  expressed  in  1826,*''  has  been  steadfastly  ad- 
hered to  in  subsequent  cases."*  The  same  rule  was  established 
in  Pennsylvania,  in  the  leading  case  of  Lancaster  v.  Dolan,^  and 
was  upheld  and  enforced  in  subsequent  decisions.^  It  was,  in- 
deed, held  in  that  state,  in  Haines  v.  Ellis,^  that  the  law  had 
been  altered  by  the  Married  Women's  Act  of  1848;  but  this  de- 
cision was  subsequently  overruled.*     In  the  authorities  just 

1  Murray  v.  Barlee,  3  M.  &  K.  209,  that    a    married    woman    could    not 

reversing   the    Vicc-Chancellor    in    4  devise  an  estate  settled  to  her  sepa- 

Sim.  82;  Owens  v.  Dickinson,  1  Cr.  &  rate  use  if  no  power  to  do  so  was 

Ph.  48.    The  decision  of  Lord  Eldon,  conferred    by   the   trust   instrument, 

in  Nantes  v.  Corrock,  9  Ves.  189,  that  This   decision   has   been   followed   in 

the  stock  of  a  feme  covert  was  not  Cobb's  Appeal,  168  Pa.  175. 

bound  by  her  engagements  because  it  «  Rogers  v.  Smith,  4  Pa.  93;  Thomas 

was    not    liable    to    execution,    also  v.  Folwell,  2  Whart.  11;  Wallace  v. 

shows  that  the  liability  is  not  by  way  Coston,    9    Watts,    137;    Cochran    v. 

of  appointment,  for  if  it  were,  the  cir-  O'Hern,    4    W.     &    S.     95;     Lyne's 

cumstance  that  stock  was  a  species  of  Ex'rs  v.  Crouse,  1   Pa.   Ill;  Jones's 

property    not    liable    to    execution  Appeal,    57    Pa.    369;    McMuUen    v. 

would  be  entirely  immaterial.  Beatty,   56  Id.   389;   West  v.  West, 

•^  3  Dessaus.  417.  10  S.  &  R.  445;  HoUiday  v.  Hively, 

?  Frazier's   Trustees    v.    Center,    1  198  Pa.  335;  Hays's  Estate,  201  Id. 

McCord  Ch.  270,  275.  394.     See  Maurer's  Appeal,  86   Pa. 

*  Magwood  v.  Johnston,  1  Hill  Ch.  380. 

228;  Robinson  v.  Dart's  Ex'rs,  Dud-  i  24  Pa.  253. 

ley's  Eq.  128,  131;  Reid  v.  Lamar,  1  »  Penna.  Ins.  Co.  v.  Foster,  35  Pa. 

Strobh.  Eq.  27;  Wallace  v.  Craig,  27  134;  Wright  v.   Brown,  44  Id.   224; 

S.  C.  514.  Shonk  v.  Brown,  61  Id.  320.    A  simi- 

5  1  Rawle,  231.     It  was  decided  in  lar  ruling  has  been  made  as  to  the 

Thomas  v.  Folwell,  2  Wharton,  11,  Married   Persons'   Property  Acts  of 


174 


TRUSTS   FOR  MARRIED    WOMEN. 


[part  I. 


cited  it  was  said  that  there  is  a  manifest  difference  between  the 
legal  separate  estate,  which  is  due  to  the  provisions  of  the  statute, 
and  the  equitable  separate  estate,  which  is  the  creature  of  Courts 
of  Equit}-;  and  this  view  seems  to  be  taken,  also,  by  the  courts 
in  IlHnois,'  and,  after  some  fluctuation,  by  those  in  Alabama.' 
But  a  different  opinion  on  the  subject  has  been  entertained  in 
other  states,  and  the  general  tendency  of  the  decisions  is,  perhaps, 
to  put  estates  of  both  kinds,  so  far  as  regards  the  power  of  the 
feme  over  them,  upon  the  same  footing.^  The  South  Carolina 
mle  was,  however,  adopted  in  Rhode  Island,'*  Tennessee,^  Mis- 
sissippi,** Illinois,^  and,  formerly,  in  Maryland.*  It  has  quite  re- 
cently been  expressly  reiterated  in  North  Carolina.^  It  was  also 
recognized,  to  a  limited  extent,  in  Ohio.^° 

On  the  other  hand,  the  English  rule  has  been  followed  in  a 
number  of  the  states.  It  was  adopted  in  New  York  in  Jaques 
V.  The  Methodist  Church, ^^  overruling  Chancellor  Kent,  who 
had  decided  the  other  way,^^  and  has  been  recognized  in  very 


1887  and  1893.  See  MacConnell  v. 
Lindsay,  131  Pa.  476;  Cobb's  Ap- 
peal, 168  Id.  175;  Hays  v.  Leonard, 
155  Id.  474,  and  HoUiday  v.  Hively, 
198  Id.  342.  Upon  this  point  Mac- 
Connell V.  Lindsay  is  not  overruled 
by  MacConnell  v.  Wright,  150  Id. 
275. 

iCookson  V.  Toole,  59  III.  515; 
Bressler  v.  Kent,  61  Id.  426;  Cole  v. 
Van  Riper,  44  Id.  58;  Carpenter  v. 
Mitchell,  50  Id.  470;  Rogers  v.  Hig- 
gins,  48  Id.  211. 

2  See  Short  r.  Battle,  52  Ala.  456, 
overruling  Molton  v.  Martin,  43  Id. 
651;  Glenn  v.  Glenn,  47  Id.  204,  and 
Denechaud  v.  Berrey,  48  Id.  591. 
See  Lippincott  v.  Mitchell,  94  U.  S. 
767. 

3  Yale  V.  Dederer,  18  N.  Y.  265; 
Ballin  v.  Dillaye,  37  Id.  35;  Peake  v. 
La  Baw,  21  N.  J.  Eq.  282;  Willard  v. 
Eastham,  15  Gray,  328. 

*  Metcalf  V.  Cook,  2  R.  I.  355. 

5  Marshall  v.  Stevens,  8  Humph. 
159;  Hart  v.  Bayliss,  97  Tenn.  72. 
See,  however,  Young  v.  Young,  7 
Cold.  461. 


«  Doty  V.  Mitchell,  9  Sm.  &  M.  435. 

7  Swift  V.  Castle,  23  111.  209;  Bress- 
ler V.  Kent,  61  Id.  426,  overruling 
Young  V.  Graff,  28  Id.  20;  Ennor  v. 
Hodson,  134  Id.  32. 

8  Miller  r.  Williamson,  5  Md.  219; 
Tarr  v.  Williams,  4  Md.  Ch.  68;  but 
see  Cooke  v.  Husbands,  11  Md.  492. 
See,  also,  the  American  note  to  Hulnie 
V.  Tenant,  1  Lead.  Cas.  Eq.  741;  Hill 
on  Trustees,  657  (4th  Am.  ed.);  and 
Perry  on  Trusts,  §  655. 

9  Kirby  r.  Boyette,  116  N.  C.  167; 
118  Id.  244.  See,  in  this  connection, 
Newlin  v.  Freeman,  4  Ired.  Eq. 
312. 

10  Machir  r.  Burroughs,  14  Ohio  St. 
519. 

11  17  Johns.  R.  548.  See,  also, 
Dyett  V.  North  Am.  Coal  Co.,  20 
Wend.  570;  Powell  v.  Murray,  2  Edw. 
Ch.  636;  Albany  Ins.  Co.  v.  Bay,  4 
Conn.  9;  Gardner  v.  Gardner,  7  Paige 
Ch.  112;  Gumming  v.  Williamson,  1 
Sandf.  Ch.  17;  Curtir  v.  Engel,  2  Id. 
287;  Mallory  v.  Vanderheyden,  3 
Barb.  Ch.  10;  1  Const.  453. 

12  3  Johns.  Ch.  78. 


CH.  IV.] 


TRUSTS   FOR   MARRIED   WOMEN. 


175 


recent  decisions.^  It  has  been  followed  in  New  Jersey,'  Con- 
necticut,^ Kentucky,^  Virginia,^  Alabama,*  Georgia,'  Mis- 
souri,* Minnesota,^  Maryland,*"  and  California;"  and  also  in 
Vermont  (to  a  certain  extent),*^  and  in  Florida.*^  It  has  like- 
wise been  followed  in  the  P^'ederal  courts.*'*  The  above  states, 
too,  have  followed  substantially  the  English  rule  upon  the  sub- 
ject of  the  liability  of  the  estates  oi  femes  covert  to  their  separate 
engagements.*^    And  of  late  years  the  doctrine  has  been  pushed 


1  See  Dyett  v.  Central  Trust  Co., 
140  N.  Y.  54.  See,  also,  Yale  v. 
Dederer,  18  N.  Y.  265;  22  Id.  456. 

2  Leaycraft  v.  Hedden,  3  Green  Ch. 
512;  Perkins  v.  Elliott,  23  N.  J.  Eq. 
529. 

3  Imlay  v.  Huntington,  20  Conn. 
175. 

*  Coleman  v.  Wooley,  10  B.  Mon. 
320;  Burch  v.  Breckenridge,  16  Id. 
482.  This  subject  is  now  regulated 
by  statute  in  this  state. 

5  Vizonneau  v.  Pegram,  2  Leigh, 
183;  Manzy  v.  Manzy,  79  Va.  537. 

"  Bradford  v.  Green  way,  17  Ala. 
805;  Jenkins  v.  McConico,  26  Id.  213; 
Smyth  V.  Fitzsimmons,  97  Id.  451. 
See  Scharf  v.  Moore,  102  Id.  468,  as 
to  the  effect  of  the  code. 

7  Fears  v.  Brooks,  12  Ga.  200; 
Dallas  V.  Heard,  32  Id.  604.  By 
statute,  Kile  v.  Fleming,  78  Ga.  1. 

*  Kimm  v.  Weippert,  46  Mo.  532; 
Cadematori  v.  Gauger,  160  Id.  352; 
Ryland  v.  Banks,  151  Id.  1. 

9  Pond  V.  Carpenter,  12  Minn.  430. 

10  Buchanan  v.  Turner,  26  Md.  5. 

11  Miller  v.  Newton,  23  Cal.  554. 

12  Frary  v.  Booth,  37  Vt.  78. 

13  Lewis  V.  Yale,  4  Fla.  418. 
"Cheever  v.  Wilson,  9  Wall.  119. 

See  Ankeney  v.  Hannon,  147  U.  S. 
118,  where  the  subject  is  fully  dis- 
cussed. 

15  Gunter  v.  Williams,  40  Ala.  572; 
Armstrong  v.  Ross,  20  N.  J.  Eq.  109; 
Van  Kirk  v.  Skillman,  34  N.  J.  L. 
109;  Batchelder  v.  Sargent,  47  N.  H. 
265;  Imlay  v.  Huntington,  20  Conn. 


175;  Cooke  v.  Husbands,  11  Md.  492; 
Penn  i'.  Whitehead,  17  Gratt.  503; 
Frazier  ?'.  Brownlow,  3  Ired.  Eq.  237 
(but  not  for  general  engagements, 
Knox  r\  Jordan,  5  Jones'  Eq.  175); 
Bradford  v.  Greenway,  17  Ala.  797; 
Ozley  V.  Ikelheimer,  26  Id.  332;  Lill- 
ard  V.  Turner,  16  B.  Mon.  374;  Burch 
V.  Breckenridge,  Id.  482;  Harris  v. 
Harris,  7  Ired.  Eq.  Ill;  Whitesides 
V.  Cannon,  23  Mo.  457;  Scha froth 
V.  Ambs,  46  Id.  114;  Miller  v.  Brown, 
47  Id.  504;  Lewis  v.  Yale,  4  Fla.  418; 
Robert  v.  West,  15  Ga.  123;  Dallas  v. 
Heard,  32  Id.  604.  In  New  York, 
see  Yale  v.  Dederer  (supra);  Ballin  i\ 
Dillaye,  37  N.  Y.  35;  Corn  Exchange 
Ins.  Co.  V.  Babcock,  42  Id.  614; 
Maxon  v.  Scott,  55  Id.  247;  Rohrbach 
V.  Ins.  Co.,  62  Id.  47;  Manhattan, 
etc.,  Co.  V.  Thompson,  58  Id.  80; 
Corbin  v.  Cantrell,  64  Id.  217.  In 
Wisconsin,  Todd  v.  Lee,  15  Wis.  365; 
16  Id.  480.  In  Tennessee,  see  Hughes 
V.  Peters,  1  Cold.  67.  A  good  deal  of 
discussion  has  taken  place,  of  late 
years,  as  to  how  far  the  separate  es- 
tate of  a  married  woman  under  the 
statutes  in  the  different  states  is 
chargeable  with  her  engagements. 
The  authorities  upon  the  subject  will 
be  found  collected  and  examined  in 
the  American  note  to  Hulme  v. 
Tenant,  1  Lead.  Cas.  Eq.  756  et  seq. 
(4th  Am.  ed.).  See  also  Deering  v. 
Boyle,  8  Kan.  525;  Wicks  v.  Mitchell, 
9  Id.  80;  Whiteley  v.  Stewart,  63 
Mo.  363;  Cookson  v.  Toole,  59  111. 
515;    Halley    v.    Ball,    66    Id.    250; 


176 


TRUSTS    FOR    MARRIED    WOMEN. 


[part  I. 


in  some  states  to  great  lengths.  Thus,  it  is  now  settled  in  Mis- 
souri that  when  a  married  woman  gives  a  promissory  note  the 
law  implies,  in  the  absence  of  proof  to  the  contrary,  an  intention 
to  bind  her  separate  estate;  and  although  it  is  permissible  to 
show  that  no  such  intention  existed,  yet  such  intention  not  to 
bind  the  separate  estate  must  appear  on  the  face  of  the  instru- 
ment, otherwise  the  estate  will  be  charged.^ 

On  the  other  hand,  it  has  been  expressly  decided  in  Virginia 
that  the  note,  or  other  general  engagement,  of  a  married  woman 
owning  separate  estate  creates  no  specific  lien  on  such  estate.^ 

Those  states  which  were  mentioned  as  having  followed  the 
lead  of  the  South  Carolina  case  of  Ewing  v.  Smith,  in  regard  to 
the  power  of  a  married  woman  to  convey  her  separate  estate, 
have  also  generally  refused  to  adopt  the  English  rule  upon  the 
subject  of  the  feme's  power  to  bind  it  by  contract.^  In  South 
Carolina,  Ohio,  and  Massachusetts,  however,  the  separate  estate 
is  chargeable  for  debts  contracted  on  its  account  and  for  its  use, 
but  not  for  the  general  engagements  of  the/emc* 

101.  Restraints  on  Anticipation. 

The  English  rule  above  stated,  in  reference  to  the  powers  of 
a  feme  covert  over  her  separate  estate,  and  the  liability  of  that 
estate  to  her  engagements,  naturally  led  to  some  plan  by  which 
the  operation  of  the  rule  could  be  avoided,  and  the  will  of  the 
donor  carried  out  by  giving  the  married  woman  the  property 
in  such  a  way  that  it  would  be  protected  against  herself  (so  to 
speak)  and  her  creditors,  as  well  as  against  her  husband  and  his 
indebtedness.  The  plan  adopted  was  the  insertion,  in  the  trust 
instrument,  of  the  clause  against  anticipation  which  was  first 
invented  by  Lord  Thurlow,  and  used  in  drawing  Miss  Watson's 


Haight  V.  McVeagh,  69  Id.  624;  Hu.s- 
band  v.  Epling,  81  Id.  172. 

1  Kimm  v.  Weippert,  46  Mo.  532; 
Metropolitan  Bank  v.  Taylor,  62  Id. 
340;  Burnley  v.  Thomas,  63  Id.  390. 
See,  also.  Gage  v.  Gates,  62  Id.  412, 
as  to  the  means  of  enforcing  the 
charge. 

-  French  r.  Waterman,  79  Va.  617. 

•'  Lancaster  v.  Dolan,  1  Kawle,  231; 
Metcalf  r.  Cook,  2  R.  I.  35.5;  Litton  r. 
Baldwin,   8  Humph.   209;   Bailey   v. 


Pearson,    9    Foster,    77;    Perry    on 
Trusts,    §  661. 

*  Magwood  V.  Johnston,  1  Hill  Eq. 
228;  Cater  v.  Eveleigh,  4  Dess.  19; 
James  v.  Mayrant,  Id.  591;  Adams  v. 
Mackey,  6  Rich.  Eq.  75;  Machir  r. 
Burroughs,  14  Ohio  St.  519;  Willard 
V.  Eastham,  15  Gray,  328;  Rogers  v. 
Ward,  8  Allen,  388;  Tracy  v.  Keith, 
11  Id.  214.  See  Hebum  v.  Warner, 
112  Mass.  271;  Taylor  v.  Barker,  30 
S.  C.  238. 


CH.  IV.] 


TRUSTS    FOR   MARRIED    WOMEN. 


177 


settlement.^  This  clause,  viz.,  "not  by  way  of  anticipation," 
was  held  to  be  effective  in  imposing  a  restraint  upon  alienation, ^ 
and  became  the  usual  language  in  settlements.  No  particular 
form  of  words  is,  however,  necessary.  It  is  enough  if  the  inten- 
tion to  impose  the  restraint  be  clearly  expressed,^  and  the  re- 
straint may  be  implied  when  a  different  interpretation  would 
defeat  the  purpose  of  the  donor.'*  Thus,  when  it  appeared  that 
the  paramount  object  of  the  will  was  to  provide  a  fund  for  the 
support  and  maintenance  of  the  testator's  wife  during  her  life*- 
time,  and  for  the  maintenance  and  education  of  his  children,  it 
was  held  that  the  power  of  alienation  was  impliedly  but  effectu- 
ally forbidden ;  ^  and  in  Nix  v.  Bradley  it  was  held  that  the  same 
conclusion  was  to  be  drawn  from  the  general  language  and  scope 
of  the  will.® 

The  clause  against  anticipation,  however,  applies  only  to  fu- 
ture income ;  it  will  not  be  operative  to  remove  arrears  of  income 
from  the  control  of  the /ewe  or  from  process  at  the  suit  of  a  cred- 
itor, as  to  arrears  which  have  become  due  before  the  judgment.' 

It  will  be  observed  that  this  restraint  upon  alienation  is  a 
violation  of  the  ordinary  rules  of  property,  the  general  principle 
being  that  the  power  of  alienation  is  a  necessary  and  inseparable 
incident  of  ownership  which  cannot  be  taken  away  by  any  con- 
dition or  stipulation  in  the  grant.  But,  it  being  once  settled  that 
a  wife  might  enjoy  a  separate  estate  as  a  feme  sole,  the  laws  of 
property  attached  to  this  new  estate;  and  it  was  found,  as  part 
of  such  laws,  that  the  power  of  alienation  belonged  to  the  wife, 
and  was  destructive  of  the  security  intended  for  her  estate. 
Equity  again  interfered,  and  by  another  violation  of  the  laws 
of  property,  supported  the  validity  of  the  prohibition  against 
alienation.* 


1  Lewin,  956  (10th  Eng.  ed.).  See, 
also,  Hood-Barrs  v.  Heriot  [1896], 
A.  C.  174  (where  a  history  of  this 
clause  is  given),  and  Bank  v.  James, 
95  Tenn.  8. 

2  Parkes  v.  White,  11  Ves.  221. 

3  Notes  to  Hulme  i\  Tenant,  1 
Lead.  Cas.  Eq.  520. 

*  Weeks  v.  Sego,  9  Ga.  201;  Nixon 
V.  Rose,  12  Gratt.  425;  Perkins  v. 
Hays,  3  Gray,  405;  Nix  v.  Bradley, 
6  Rich.  Eq.  43. 

*  Perkins  v.  Hays,  3  Gray,  405. 

12 


8  6  Rich.  Eq.  43. 

7  Hood-Barrs  v.  Heriot  [1896],  A.  C. 
174,  reversing  Lord  Esher,  M.  R.,  in 
Loftus  V.  Heriot  [1895],  2  Q.  B.  212. 
See  Hood-Barrs  v.  Cathcart  [1894].  2 
Q.  B.  559.  In  Hays's  Estate,  201 
Pa.  391 ,  it  was  held  that  under  proper 
language  for  payment  of  income 
solely  upon  the  woman's  own  re- 
ceipt, income  accrued  but  not  paid 
over  was  not  liable  to  attachment  in 
the  hands  of  the  trustees. 

8  By  Lord  Cottenham,  in  Tullett  v. 


178  TRUSTS   FOR   MARRIED    WOMEN.  [PART  I. 

105.  For  whose  benefit  separate  estates  may  be  created. 

An  important  question  which  naturally  presents  itself  in  re- 
gard to  these  trusts  is,  "For  whose  benefit  can  they  be  created?" 
For  it  is  obvious  that  the  trust  may  be  attempted  to  be  created 
for  the  benefit  either  of  a  woman  covert  at  the  time,  or  in  con- 
temi)lation  (more  or  less  immediate)  of  coverture,  or  without  any 
such  contemplation;  and  the  question  arises,  Is  there  any  dis- 
tinction between  these  cases?  In  other  words,  can  a  sole  and 
separate  use  be  limited  to  a /ewe  sole  which  will  come  into  opera- 
tion whenever  coverture  takes  place;  or  can  the  trust  be  called 
into  being  merely  for  the  benefit  of  a  woman  actually  married 
at  the  time  of  its  creation? 

In  England  this  question  was  considered  in  the  year  1834,  in 
the  case  of  Massey  v.  Parker.^  It  was  there  decided  that  where 
a  trust  of  this  description  was  created  for  the  benefit  of  a  jeme 
sole,  it  would,  upon  her  marriage,  be  ineffectual  to  debar  her  hus- 
band from  his. marital  rights.  This  decision,  which  was  made 
by  Lord  Cottenham  when  Master  of  the  Rolls, ^  was,  however, 
afterwards  overmled  by  the  same  judge,  as  Chancellor,  in  the 
subsequent  case  of  Tullett  v.  Armstrong,^  where  the  rule  was 
laid  down  that  a  valid  separate  trust  could  be  created  for  the 
benefit  of  a  woman,  unmarried  at  the  time,  which  would  come 
into  active  operation  whenever  a  marriage  took  place;  and 
which,  moreover,  would  not  cease  entirely  upon  discoverture, 
but  would  revive  and  again  take  effect  upon  a  subsequent  mar- 
riage. This  rule  has  been  adhered  to  in  England,  and  is  now 
firmly  established  by  many  decisions. 

But  it  must  here  be  remarked  that  while  a  trust  for  the  sole 
and  separate  use  of  a  feme  may  be  created  when  she  is  sole,  yet, 
if  she  chooses  to  make  any  disposition  of  the  property  before 
coverture,  she  is  at  liberty  to  do  so;  and  that  no  restraint  upon 
her  power  of  alienation  will  be  tolerated  if  she  elects  to  exer- 
cise that  power  before  she  becomes  covert.  In  other  words,  a 
fe)7)e  when  discovert  has  the  same  power  over  an  estate  limited 
to  her  sole  and  separate  use,  as  any  other  person  sui  juris;  she 

Armstrong,  4  My.  &  Cr.  405.     See,  in  any  property,"  notwithstanding  a 

also,  Nickell  v.  Handly,  10  Gratt.  336.  restraint  upon  anticipation.     See  In 

In  England,  by  sec.  31  of  the  "Con-  re  Little,  40  Ch.  D.  423. 
veyancing    and    Law    of    Property"  i  2  M.  &  K.  174. 

Act  of  1881,  the  court  is  given  di.s-  2  gjr  C.  Pepys. 

cretionaiy     power     to     authorize     a  ^  4  M.  &  Cr.  377. 

married  woman  "to  bind  her  interest 


CH.  IV.]  TRUSTS    FOR   MARRIED    WOMEN.  179 

has  the  option  of  determining  the  trust  when  unmarried ;  if  she 
does  not  choose  so  to  determine  it,  it  will  attach  upon  the  first 
or  any  subsequent  coverture.* 

106.  Rules  in  the  United  States  upon  this  subject. 

The  decision  in  Massey  v.  Parker  has  been  followed  in  Penn- 
sylvania,' in  Arkansas,'  in  North  Carolina,'*  and  in  Massachu- 
setts.^ In  the  first-named  state  it  must  now  be  considered  the 
settled  law  that  a  separate  use  trust  cannot  be  created  except 
for  a  married  woman,  or  one  in  immediate  contemplation  of 
marriage,^  and  that  it  ceases  on  discoverture^  and  does  not  revive 
on  a  second  marriage.*  Whether  "immediate  contemplation 
of  marriage"  may  or  may  not  exist  in  any  particular  case, 
must,  it  is  evident,  be  a  question  of  fact  not  always  easy  to  de- 
termine. It  has  been  said  that  the  creation  of  the  trust  con- 
stitutes the  evidence  of  the  fact  being  in  the  contemplation 
of  the  donor  or  devisor,  and  when  this  is  followed  within  a 
reasonable  time  by  consummation  of  the  marriage,  it  concludes 
the  proof  .^ 

But  in  other  states  of  the  Union  the  present  English  mle  has 
been  adopted.*" 

107.  General  conclusions;  Lewin's  propositions. 

The  restraint  upon  alienation,  of  course,  will  not  prevent 

1  See,  in  this  connection,  the  case  57  Pa.  352;  Lee's  Estate,  207  Id.  218; 
of  Wright  V.  Wright,  2  Johns.  &  H.  but  not  on  mere  desertion  by  the 
647.  husband;  People's  S.  Bank  v.  Denig, 

2  Hamersley  v.  Smith,  4  Whart.  131  Id.  253.  See,  also,  Carswell  v. 
126;  Smith  v.  Starr,  3  Id.  62.  Lovett,  80  Ga.  36. 

3  Lindsay  i'.  Harrison,  3  Eng.  311.  *  Hamersley   v.    Smith,    4    Whart. 
<  Apple  V.  Allen,  3  Jones'  Eq.  120;       126;  Bush's  Appeal,  33  Pa.  85;  Mc- 

though    see  Bridges  v.   Wilkins,   Id.  Kee  v.  McKinley,  Id.  92;  Freyvogle  v. 

342.  Hughes,  56  Id.   228;   Kimtzleman's 

^  Moore  v.  Stinson,  144  Mass.  594.  Estate,    136   Id.    151.      See,    in    this 

"  McBride  v.  Smyth,  54   Pa.  245;  connection,  O'Brien  v.  Ash,  169  Mo. 

Snyder's  Appeal,  92  Id.  504;  Neal's  283. 

Appeal,  104  Id.  214.    See  Quin's  Es-  » Wells    v.    McCall,    64     Pa.    207; 

tate,  144  Id.  449  (where  a  very  full  Springer  tj.  Arundel,  Id.  218;  Ogden's 

history  of  the  law  on  this  point  is  Appeal,  70  Id.  501. 

given),  and   King's  Estate,   147  Pa.  lo  Beaufort   v.    Collier,   6    Humph. 

410,  where  a  trust  for  the  testator's  487;  Shirley  v.  Shirley,  9  Paige  Ch. 

widow  was  held  not  to  be  a  " sole  and  363;   Fellows  v.  Tann,  9  Ala.   1003; 

separate"  use.  Waters  v.  Tazewell,  9  Md.  291;  Stag- 

^  Or  on  divorce,  Koenig's  Appeal,  gers  v.  Matthews,  13  Rich.  Eq.  154. 


180  TRUSTS   FOR   MARRIED    WOMEN.  [PART  I. 

the  feme  from  disposing  of  the  property  settled  to  her  separate 
use,  if  she  chooses  to  do  so  before  marriage,  or  in  the  interval 
between  different  covertures;  but  the  restraint  will  attach  when- 
ever coverture  takes  place.  This  is  the  English  rule.  But  in 
those  states  where  the  separate  use  can  only  be  created  for  the 
benefit  of  women  who  are  either  actually  married,  or  in  imme- 
diate contemplation  of  matrimony,  the  clause  in  regard  to 
anticipation  is  subject  to  the  same  rules,  and  it  will  be  ineffectual 
except  in  the  two  specified  cases. 

The  law  upon  this  subject  may,  perhaps,  be  summed  up  in 
the  questions  propounded  by  Lewin,  and  in  the  answers  thereto 
— as  follows : — 

1.  Can  property  given  to  the  separate  use  of  a  woman  be  dis- 
posed of  by  her  before  her  marriage?  This  must  be  answered 
in  the  affirmative. 

2.  If  the  property  is  not  so  disposed  of,  does  the  separate  use 
clause  come  into  effective  operation  upon  first  and  subsequent 
covertures?    This  must  also  be  answered  in  the  affirmative. 

3.  Is  the  clause  against  anticipation  valid?    It  is. 

It  may  be  added  that  under  the  most  recent  English  authori- 
ties, the  trust  for  the  sole  and  separate  use  extends  to  the  abso- 
lute interest  in  personalty,  and  to  the  corpus,  as  well  as  to  the 
income  of  real  estate.^ 

If  a  married  woman  dies  without  having  disposed  of  her  sepa- 
rate estate  by  will,  her  husband,  except  when  controlled  by  stat- 
ute, will  take  the  same  interest  therein  as  he  does  in  her  legal 
or  ordinary  equitable  estates.^ 

108.  Pin-money  trnsts. 

Akin  to  tmsts  for  the  separate  use  of  married  women,  are 
what  are  known  as  "pin-money"  trusts. 

Pin-money  may  be  defined  to  be  a  yearly  allowance  settled  by 
the  husband  upon  the  wife,  for  her  clothes  or  other  separate  per- 
sonal expenses;  and  its  principal  incident  is  that  its  purpose  is 
expenditure,  and  not  accumulation.  Hence,  if  a  married  woman 
suffers  this  allowance  to  remain  unpaid  for  sevei'al  years,  she 

See  Winchester  v.   Maehen,  7.5   Md.  229;    Faries's    Appeal,    23    Pa.    29; 

538.  Donnington  v.  Mitchell,  1  Green  Ch. 

1  Taylor  v.  Meads,  4  De  G.  J.,  &  S.  239;  Cooney  v.  Woodburn.  33  Md. 
597.  320;  Perry  on  Trusts,  §  668 

2  Stewart  i\  Stewart,  7  Johns.  Ch. 


CH.  IV.]  TRUSTS   FOR   MARRIED    WOMEN.  181 

will  be  unable  to  recover  more  than  one  year's  arrears  from  her 
husband  or  his  estate;  for  the  reason  that,  as  this  allowance  is 
designed  to  be  approjiriated  for  her  personal  expenses,  it  must 
be  presumed  that  if  she  has  not  drawn  upon  this  fund,  she  has 
been  supplied  by  her  husband  from  other  sources,  and  that  it 
would  therefore  be  unjust,  after  he  has  once  supplied  her  wants, 
from  time  to  time,  to  hold  him  responsible  for  the  accumulation 
of  her  allowance,  and  thus,  in  effect,  compel  him  to  pay  it  twice. 
When,  however,  the  wife's  allowance  has,  in  point  of  fact,  been 
paid  short,  she  may  recover  the  accumulations.^  On  the  other 
hand,  where  it  appears  that  the  husband  has  actually  paid  for 
his  wife's  expenses,  she  cannot  even  recover  the  one  year's 
arrears.  Nor  can  the  wife's  executors  recover  from  the  husband 
or  his  estate  even  one  year's  arrears;  because  the  allowance  is 
entirely  personal  with  the  wife,  and  the  reason  for  its  payment 
ceases  with  her  death. 

The  leading  case  upon  the  subject  is  Howard  v.  Digby,^  where 
the  principles  applicable  to  this  species  of  trust  will  be  found 
discussed. 

As  to  arrears  of  the  wife's  separate  income  other  than  pin- 
money,  the  rule  is  different.  When  the  husband  and  wife  have 
lived  together,  the  latter  cannot  charge  her  husband  or  his  estate, 
as  her  debtor,  for  arrears  of  separate  income  which  she  has  per- 
mitted him  to  receive.  The  court  will  not  give  any  account 
against  the  husband  or  his  representatives  in  respect  of  arrears 
of  the  wife's  separate  income,  not  pin-money,  received  by  him 
with  her  express  or  implied  permission.^ 

109.  Wife's  equity  to  a  settlement. 

It  has  been  already  mentioned  that  the  right  of  the  hus- 
band to  his  wife's  property  is  subject  to  this  qualification,  viz., 
that  if  for  the  purpose  of  reaching  her  equitable  property  he 
is  obliged  to  go  into  Chancery,  equity  will  compel  him  at  her 
request  to  make  a  suitable  provision  for  herself  and  her  children. 

110.  How  enforced. 

It  had  been  at  first  supposed  that  this  right  of  the  wife  was 

1  Ridout  V.  Lewis,  1  Atk.  269.  3  Atk.   393,  and  note   to  Hulme  v. 

2  8  Bligh  N.  R.  224.  As  to  the  Tenant,  1  Lead.  Cas.  Eq.  538  et  seq. 
wife's  paraphernalia  and  what  jewels  3  Edward  v.  Cheyne,  13  App.  Cas. 
and  other  articles  are  included  in  the  398. 

term,   see   Graham   v.   Londonderry, 


182 


TRUSTS    FOR   MARRIED    WOMEN. 


[part  1. 


of  a  passive  rather  than  an  active  nature,  and  while  capable 
of  being  enforced  in  a  suit  in  which  the  husband  was  com- 
plainant, and  which  had  been  instituted  by  him  for  the  pur- 
pose of  getting  in  his  wife's  equitable  chases  in  action,  could  not 
be  actively  asserted  by  the  wife  herself  as  plaintiff.  This  idea, 
however,  was  dissipated  by  the  leading  case  of  Elibank  v.  Mon- 
tolieu,^  and  it  was  there  held  that  the  wife  could  come  into 
Chancery  as  complainant  for  the  purpose  of  having  a  settlement 
made. 

The  better  opinion  is  that  the  same  rule  exists  in  the  United 
States.^ 

Where,  however,  the  property  out  of  which  a  settlement  is 
sought  is  real  estate,  the  wife,  it  is  said,  cannot  come  in  as  plain- 
tiff.^ But  in  a  case  in  Vermont,  a  settlement  was  allowed  the 
wife  out  of  realty — and  this,  too,  although  it  was  not  an  equi- 
table estate  ."^ 

In  the  United  States,  also,  settlements  have,  in  some  cases, 
been  compelled,  when  actions  have  been  brought  to  recover  the 
wife's  property  in  the  common-law  courts.^ 

This  equity  is  believed  to  exist  in  all  of  the  United  States 
except  New  Hampshire  and  North  Carolina,  and  it  has  also 
been  recognized  in  the  Federal  courts.^  In  those  states  where 
the  property  of  married  women  is  secured  to  them  by  statute, 


1  5  Ves.  737. 

2  Hill  on  Trustees,  632  (4th  Am. 
ed.);  Perry  on  Trusts,  §  629;  Kenney 
V.  Udall,  5  Johns.  Ch.  464;  Udall  v. 
Kenney,  3  Cow.  590;  Brown  v.  Wads- 
worth,  168  N.  Y.  225;  Dearin  v.  Fitz- 
patrifk,  Meigs,  551;  Poindexter  r. 
Jetfries,  15  Gratt.  363,  and  the  dicta 
in  many  cases  cited  in  tlie  American 
note  to  Murray  v.  Lord  Elibank,  1 
Lead.  Cas.  Eq.  670.  See,  however, 
Jackson  v.  Hill,  25  Ark.  223. 

^  Gleaves  v.  Paine,  1  De  G.  J.,  & 
Sm.  87. 

4  Curtis  V.  Simpson,  72  Vt.  232. 

5Rees  V.  Waters,  9  Watts,  94; 
Perry  on  Trusts,  §  629. 

^  Ward  V.  Amory,  1  Curtis,  432; 
Tucker  v.  Andrews,  13  Me.  124; 
Short  V.  Moore,  10  Vt.  446;  Howard 
V.  Moffatt,  2  Johns.  Ch.  206;  Wiles 


V.  Wiles,  3  Md.  1;  Poindexter  v.  Jef- 
fries, 15  Gratt.  363;  Durr  v.  Bowyer, 

2  McCord's  Ch.  368;  Andrews  v. 
Jones,  10  Ala.  401;  Davis  v.  New- 
ton, 6  Met.  537;  Chase  v.  Palmer,  25 
Me.  342;  Wilks  v.  Fitzpatrick,  1 
Humph.  54;  Coppedge  v.  Threadgill, 

3  Sneed,  577;  Gould  v.  Gould,  16 
Ala.  132;  James  v.  Gibbs,  P.  &  H. 
277;  Lay  v.  Brown,  13  B.  Mon.  295; 
Barron  v.  Barron,  24  Vt.  375;  Page 
V.  Estes,  15  Pick.  369;  Gardner  v. 
Hooper,  3  Gray,  398.  In  North 
Carolina,  see  Bryan  v.  Brj^an,  1  Dev. 
Eq.  47;  Lassiter  v.  Dawson,  2  Id. 
383.  In  Pennsylvania  it  is  enforced 
by  preventing  a  recovery  in  a  legal 
action,  unless  upon  the  terms  of  mak- 
ing a  suitable  provision  for  the  wife. 
Kcos  V.  Waters,  9  Watts,  94.  In 
New  Hampshire  it  has  not  been  recog- 


CH.  IV.]  TRUSTS   FOR   MARRIED    WOMEN.  183 

the  reasons  for  the  existence  of  this  right  have  passed  away, 
and  as  such  statutes  exist  in  nearly  all  of  the  states  of  the  Union, 
the  subject  is  not  of  such  practical  importance  as  formerly;  ^ 
and  in  England,  also,  the  Married  Woman's  Propeily  Act  of 
1882  -  and  1893,  have  greatly  diminished  the  necessity  for  the 
application  of  this  doctrine.  It  is  still,  however,  proper  to  say 
a  few  words  concerning  the  wife's  "ecjuity  to  a  settlement" 
(as  it  is  termed),  and  to  notice  how  it  may  be  enforced,  out  of 
what  property,  against  whom,  and  for  whose  benefit. 

When  property  of  a  married  woman  is  vested  in  tmstees,  they 
may  with  perfect  safety  hand  over  the  same  to  her  husband,  and 
take  his  receipt  therefor,  except,  of  course,  in  the  case  of  prop- 
erty settled  to  her  separate  use ;  ^  or  where  the  common-law 
rule  has  been  altered  by  statute.  But  the  tmstees  may,  if  they 
choose,  refuse  to  make  payment  to  the  husband;  who  is  then 
obliged,  in  order  to  get  in  the  fund,  to  come  hito  court  and  to 
submit  to  his  wife's  right  to  a  settlement.  In  such  a  case  the 
trustees  will  not  be  liable  to  costs.  The  wife's  equity  to  a  set- 
tlement will  also  be  recognized  by  the  courts,  in  bills  filed  by 
the  creditors  of  the  husband  to  reach  the  wife's  dtoses  in  ac- 
tion.'^ 

If  the  husband  has  become  the  purchaser,  as  it  were,  of  his 
wife's  property  by  settlement  before  marriage,  he  will  not  be 
compelled  to  make  any  allowance  for  her  out  of  her  ecjuitablc 
funds.  In  such  a  case  he  is  considered  to  have  accjuired  a  right 
to  the  whole  of  his  wife's  fortune,  not  only  by  virtue  of  his 
marital  right,  but  by  purchase  for  value.^  This  rule,  however, 
does  not  apply  to  property  which  the  feme  acquires  subsequent 
to  the  coverture,  and  which  is  not  included  in  the  contemplated 
settlement.  Out  of  this  property  she  is  entitled  to  her  ecjuity 
to  a  settlement.*^  Nor  will  the  feme  be  deprived  of  this  equity 
by  a  voluntary  settlement  after  marriage.'^ 

nized.    Parsons  v.  Parson.s,  9  N.   H.  *  Smith  v.  Kane,  2  Paige  Ch.  303; 

309;  Hill  on  Trustees,  631   (4th  Am.  1  Lead.  Cas.  Eq.  496. 

ed.);  notes  to   Murray  v.   Lord   Eli-  5  Perry  on  Trusts,  §  635;  Erskine's 

bank,  1  Lead.  Cas.  Eq.  670.  Trusts,  1  K.  &  J.  302. 

iSee     Perry     on     Trusts,      §645,  « Garforth  r.  Bradley,  2  Ves.  677. 

note  9.  See  Matter  of  Beresford,  1  De.ss.  263. 

2  45  and  46  Vict.,  c.  75;  56  and  57  7  Hill  on  Trustees,  409;  though  see 
Id.,  c.  63  {supra,  p.  104).  Dunkley  v.  Dunkley,  2   De  G.   M.,  & 

3  Perry  on  Trusts,  §  627.  G.  390;  and  Matter  of  Beresford,   1 

Dess.  263. 


184 


TRUSTS   FOR   MARRIED    WOMEN. 


[part  I. 


The  wife  cannot  claim  a  settlement  if  she  has  an  adequate 
provision  already.' 

If  a  woman  at  the  time  of  her  marriage  owes  more  than  the 
amount  of  her  property,  she  will  not  be  entitled  to  a  settle- 
ment;- but  if  the  property  exceeds  the  amount  of  her  debts, 
she  may  be  entitled  to  a  settlement  after  provision  has  been 
made  for  the  payment  of  her  debts. ^ 

A  married  woman  may  preclude  herself  from  claiming  her 
equity  to  a  settlement  by  fraud,'*  or  by  improper  conduct,  such 
as  adultery.^ 

111.  How  waived. 

The  wife  may  waive  her  right  to  a  settlement,  unless  her  chil- 
dren have  already  acquired  an  interest  therein.  This  waiver 
takes  place  on  a  separate  examination  of  the  wife,  by  which  it 
is  ascertained  that  her  consent  is  given  of  her  own  free  will,  and 
is  not  obtained  from  her  by  fraud  or  force  .^  This  consent  can- 
not be  taken  if  the  wife  is  an  infant.^ 

112.  To  what  property  it  attaches. 

It  is  well  settled  that  the  equity  to  a  settlement  will  attach 
to  real  estate,  and  to  chattels  real  as  well  as  to  personal  prop- 
erty; and  it  will  attach  to  any  property  which  becomes  the 
subject  of  an  equitable  suit,  even  though  it  is  legal  in  its  nature.* 

The  equity  to  a  settlement  exists  in  respect  of  the  wife's  Ufe 
interest  as  against  an  insolvent  or  bankrupt  husband,  or  as 
against  his  general  assignee  in  bankruptcy  or  insolvency.^  But 
not  as  against  her  husband  who  supports  her;  or  as  against  his 
particular  assignee  for  value, '°  even  if  he  does  not  support  her. 


1  Notes  to  Murray  v.  Lord  Elibank, 
1  Lead.  Cas.  Eq.  670. 

2  Bonner  v.  Bonner,  17  Beav.  86. 

3  Barnard  v.  Ford,  L.  R.  4  Ch.  247. 
*  Lush's  Trusts,  L.  R.  4  Ch.  591. 

5  Carr  v.  Eastabrooke,  4  Ves.  146; 
In  re  Lewin's  Trust,  20  Beav.  378. 

«  Beaumont  v.  Carter,  32  Beav. 
586;  1  Lead.  Cas.  Eq.  468  (4th  Eng. 
ed.).  Examinations  of  a  similar 
character  are  prescribed  by  statute 
in  many  states  where  a  conveyance 
of  the  real  estate  of  a  feme  covert  is 
made. 


7  Stubbs  V.  Sargon,  2  Beav.  496; 
Abraham  v.  Newcombe,  12  Sim.  566. 
See,  however,  Jennings  v.  Jennings,  2 
Heisk.  283. 

8  Perry  on  Trusts,  §  633. 

9  Sturgis  V.  Champneys,  5  My.  & 
Cr.  97;  Vaughan  v.  Buck,  1  Sim.  N. 
R.  284;  Ruffles  v.  Alston,  L.  R.  19 
Eq.  539.  See  Beeman  v.  Cowser,  22 
Ark.  429;  Perry  on  Trusts,  §  634. 

loTidd  V.  Lister,  10  Hare,  140;  3 
De  G.,  M.  &  G.  857.  See  Sims  v. 
Spalding,  2  Duvall,  121. 


CH.  IV.] 


TRUSTS   FOR   MARRIED    WOMEN. 


185 


The  assignment  of  the  wife's  Ufe  interest  will  be  good  only  dur- 
ing coverture,  and  will  not  bind  her  if  she  survives. 

The  court  will  not  order  a  settlement  of  reversionary  personal 
property  of  the  wife.^ 

The  court  will  not  ordinarily  settle  the  whole  fund  upon  the 
wife.  A  half  is  considered  a  fair  settlement.-  The  whole  may, 
however,  be  settled  under  special  circumstances.^ 

113.  Against  whom,  and  in  whose  favor. 

This  equity  is  enforceable  as  against  the  husband  and  all 
persons  claiming  under  him,  whether  they  are  assignees  for 
value,'*  or  voluntary  assignees,  or  assignees  in  bankruptcy.^  And 
this  equity  is  paramount  to  the  right  of  set-off  which  an  execu- 
tor or  administrator,  from  whom  a  legacy  or  distributive  share 
is  due  to  the  wife,  has  by  reason  of  any  indebtedness  of  the 
husband  to  the  estate.*^  This,  however,  must  be  subject  to  the 
qualification  noticed  above,  that  where  the  interest,  out  of  which 
the  settlement  is  sought,  is  a  life  estate,  it  cannot  be  enforced  as 
against  the  husband  if  he  supports  the  wife,  or  against  his  par- 
ticular assignee  for  value.  The  reason  of  this  exception  is  that 
the  assignment  of  the  life  estate  will  be  good  only  during  cover- 
ture.' 

The  equity  to  a  settlement  is  the  privilege  of  the  wife,  and 
can  be  enforced  only  by  her,  and  may  be  waived  by  her  after  a 
separate  examination.  Nevertheless,  when  made  it  will  enure 
to  the  benefit  of  the  children.  The  children,  however,  cannot 
assert  the  right  themselves;  and  if  the  wife  dies  before  decree, 
the  husband  will  take.* 


1  Osborn  v.  Morgan,  9  Hare,  432. 

2  1  Lead.  Cas.  Eq.  464  (4th  Eng. 
ed.).  The  children  will  be  provided 
for.  Brown  v.  Wadsworth,  168  N.  Y. 
225. 

3  Perry  on  Trusts,  §  636;  Taunton 
V.  Morris,  L.  R.  8  Ch.  D.  453. 

*  Macaulay  v.  Philips,  4  Ves.  19; 
Haviland  v.  Bloom,  6  Johns.  Ch.  180. 

5  Taunton  v.  Morris,  L.  R.  8  Ch.  D. 
453. 

6  See  In  re  Briant,  39  Ch.  D.  471. 
See,  also,  1  Lead.  Cas.  Eq.  447; 
Perry  on  Trusts,  §  632. 

^  As  to  the  parties  against  whom 


the  wife's  equity  to  a  settlement  will 
be  enforced,  see  Kenney  v.  lldall,  5 
Johns.  Ch.  464;  Udall  v.  Kenney,  3 
Cow.  591;  Hanland  v.  Myers,  6 
Johns.  Ch.  25;  Page  v.  Estes,  19 
Pick.  269;  Phillips  v.  Hassell,  10 
Humph.  197;  Coppedge  v.  Threadgill, 
3  Sneed,  577;  Moore  v.  Moore,  14  B. 
Mon.  259;  Durr  v.  Bowyer,  2  Mc- 
Cord  Ch.  368;  Duvall  v.  The  Farmers' 
Bank,  4  G.  &  J.  283;  Bennett  v.  Dil- 
lingham, 2  Dana,  436. 

8  Perry  on  Trusts,   §  627;   1   Lead. 
Cas.  Eq.  460. 


186 


TRUSTS   FOR   MARRIED   WOMEN, 


[part  I. 


When  a  person  has  committed  a  contempt  by  marrying  a 
ward  of  the  court,  the  court  will  order  a  settlement  of  her  prop- 
erty to  be  made;  and  under  such  circumstances  the  settlement 
will  be  made  to  embrace  her  property  of  all  kinds,  legal  as  well 
as  equitable,  and  will  generally  be  of  the  whole  estate.'  So, 
when  the  husband  has  misbehaved,  or  has  become  utterly  in- 
solvent, settlements  of  purely  legal  property  have  been  enforced. 
So  also  it  is  a  settled  doctrine  that  equity  will  lay  its  hands 
on  the  property  of  the  wife  which  is  within  its  power,  for  the 
purpose  of  providing  a  maintenance  for  her  when  she  is  aban- 
doned by  her  husband,  or  prevented  from  cohabitation  by  his 
ill-treatment.'  These  cases  proceed  upon  somewhat  different 
doctrines,  however,  from  the  pure  equity  to  a  settlement  already 
considered.^ 

In  some  states  of  the  Union  maintenance  in  the  nature  of  ali- 
mony out  of  the  husband's  estate  has  been  decreed  to  the  wife 
under  proceedings  in  equity.  It  is  true  that  the  general  rule  in 
England  is  against  exercising  such  a  jurisdiction,"*  and  many  of 
the  American  decisions  are  to  the  same  effect.^  But,  on  the 
other  hand,  there  are  not  wanting  authorities  to  the  effect  that 
such  a  jurisdiction  will  Ije  assumed,  and  it  seems  to  be  con- 
ceded, on  all  sides,  that  courts  of  equity  will  lay  hold  of  any 
ground  of  jurisdiction  which  the  particular  case  may  present 
for  the  purpose  of  affording  the  desired  relief.^  The  subject 
was  elaborately  considered  in  Mississippi  in  Garland  v.  Gar- 


1  1  Lead.  Cas.  Eq.  496;  Perry  on 
TriLsts,  §631. 

2  Nicholls  V.  Dan  vers,  2  Vern.  671; 
William.s  v.  Callow,  Id.  752;  New- 
.some  V.  Bowyer,  3  P.  Wms.  37;  Cecil 
V.  Ju.xon,  1  Atk.  278;  Dumond  v.  Ma- 
gee,  4  Johns.  Ch.  322. 

3  Perry  on  Trusts,  §  631.  In  some 
cases  in  the  United  States  main- 
tenance in  the  nature  of  alimony  has 
been  decreed  by  courts  of  equity. 
Purcell  I'.  Purcell,  4  Hen.  &  Munf. 
507;  Paterson  i'.  Paterson,  1  Hal.  Ch. 
389.  In  some  states  jurisdiction  in 
divorce  is  made  a  head  of  equitable 
relief. 

*  See  Ball  v.  Montgomery,  2  Yes. 
196;  Story's  Eq.  Jurisp.  §  1422.  See, 
also,  article  in  24  Am.  L.  Reg.  1. 


5  Fischli  ('.  Fischli,  1  Blackf.  360; 
Peltier  v.  Peltier,  Harring.  Ch.  19; 
Rees  V.  Waters,  9  Watts,  90;  Pomeroy 
V.  Wells,  8  Paige  Ch.  406;  Parsons  v. 
Parsons,  9  N.  H.  309;  McGee  v. 
McGee,  10  Ga.  477;  Doyle  v.  Doyle, 
26  Mo.  546;  Yule  v.  Yule,  10  N.  J. 
Eq.  138;  Trotter  v.  Trotter,  77  111. 
510. 

8  See  Purcell  v.  Fhircell,  4  Hen.  & 
Munf.  507;  Galland  v.  Galland,  38 
Cal.  265;  Butler  v.  Butler,  4  Littell, 
202;  Almond  v.  Almond,  4  Rand.  662; 
Logan  V.  Logan,  2  B.  Mon.  142;  Pra- 
ther  V.  Prather,  4  Dess.  33;  Rhame  v. 
Rhame,  1  McCord  Ch.  197;  Glover  v. 
Glover,  16  Ala.  446;  Pearce  v.  Pearce, 
132  Id.  221;  Graves  i-.  Graves,  36  la. 
310;  Dole  v.  Gear,  14  Haw.  554. 


CH.  IV.] 


TRUSTS    FOR   MARRIED    WOMEN. 


187 


land/  and  the  jurisdiction  supported.     A  different  conclusion 
was,  however,  reached  in  Illinois.^ 

In  some  states  the  power  is  granted  by  statute.^ 

114.  Gifts  from  husband  to  wife;  contracts. 

In  considering  the  equitable  doctrines  which  are  applicable 
to  the  property  of  married  women,  the  subject  of  gifts  from  the 
husband  to  the  wife  requires  to  be  noticed. 

The  existence  of  a  married  woman  being  supposed  to  be  merged 
in  that  of  her  husband,  a  conveyance  from  the  latter  to  the 
former  at  common  law  is  of  no  effect. 

Deeds  which  operate  at  common  law,  and  not  under  the 
Statute  of  Uses,  pass  no  title  to  the  wife."* 

In  equity,  how^ever,  the  rule  is  otherwise.  Gifts  from  the 
husband  to  the  wife  will  be  upheld,  and  if  the  legal  title  does  not 
pass  out  of  the  former,  he  will,  nevertheless,  be  considered  to  be 
a  tmstee  for  his  wife,  and  the  transaction  will  be  upheld  as  a 
settlement.^  And  the  same  result  will  follow  when  the  gift 
emanates  from  a  third  person,  the  husband  assenting  to  it  and 
treating  the  property  as  belonging  exclusively  to  the  wife.^ 
E(iuity,  however,  while  upholding  the  gift,  has  thought  it  right 
to  attach  to  it  this  qualification,  viz.,  that  the  settlement  must 
be  a  reasonable  one.  Equity  will  not  assist  the  husband  to  im- 
poverish himself  for  the  sake  of  his  wife.'^    To  do  so  would  be  to 


1  50  Miss.  694. 

2  Trotter  v.  Trotter,  77  111.  510.  It 
has  been  held,  in  some  English  cases 
(Harris  v.  Lee,  1  P.  Wms.  482;  Mar- 
low  V.  Pitfield,  Id.  558;  Deare  v. 
Soutten,  L.  R.  9  Eq.  151;  Jenner  v. 
Morris,  3  De  G.,  F.  &  J.  45),  that  a 
person  who  advances  money  to  a 
married  woman  for  necessaries — she 
not  being  supplied  by  her  husband — 
is  entitled  to  a  remedy  in  equity 
against  the  husband;  and  these  cases 
have  been  followed  in  Kenyon  v. 
Farris,  47  Conn.  510,  and  approved 
by  a  dictum  in  Walker  v.  Simpson,  7 
W.  &  S.  83,  and  by  text-writers,  1 
Bish.  M.  &  D.  §§1190-1191;  Pom. 
Eq.  Jurisp.  §§  1299-1300;  2  Kent 
Com.  146,  note;  Schouler  on  Dom. 
Reins.    §  61,  note.     They   were  not 


approved  in  Skinner  v.  Tirrell,  159 
Mass.  474. 

3  See  Michigan  Stats.  1885,  p.  169; 
Alabama  Code,  §§  1485  et  seq. 

*  Crawford  v.  Whitmore,  120  Mo. 
144.  It  is  not  within  the  general  ju- 
risdiction of  a  court  of  chancery  to 
annul  a  marriage  because  when  con- 
tracted the  wife  had  a  former  hus- 
band living.  Kelley  v.  Kelley,  161 
Mass.  111. 

5  McKennan  v.  Phillips,  6  Whart. 
571;  Williams's  Appeal,  47  Pa.  307; 
Thompson  v.  Allen,  103  Id.  44-48;" 
Sipley  V.  Wass,  49  N.  J.  Eq.  463.  See, 
also,  Lowe  v.  McLeod,  76  Ala.  418. 

« Gentry  v.  McReynolds,  12  Mo. 
533;  Welch  v.  Welch,  63  Id.  60. 

'  Stickney  v.  Borman,  2  Pa.  67; 
Lins  V.  Lenhart,  127  Mo.  271, 


188 


TRUSTS    FOR   MARRIED    WOMEN, 


[part  I. 


injure  his  credit,  and  to  act  unfairly  towards  those  who  might 
afterwards  become  his  creditors.  The  settlement,  therefore, 
must  not  be  actually  fraudulent;  that  is,  it  must  not  be  made 
while  he  is  in  embarrassed  circumstances,  or  about  to  engage 
in  a  hazardous  business,  or  in  any  way  be  calculated  to  deceive 
and  injure  bona  Jide  creditors;  and  it  must  be  a  reasonable  pro- 
portion of  his  estate.  What  that  proportion  is,  does  not  ap- 
pear to  be  definitely  settled.^ 

Contracts  between  husband  and  wife  will  sometimes  be  en- 
forced in  equity.-  But  Courts  of  Chancery  do  not  recognize  the 
same  right  in  husband  and  wife  to  contract  with  each  other  that 
they  would  have  at  common  law  were  they  single.  Such  con- 
tracts will  be  examined  with  great  caution;  and  will  only  be  en- 
forced when  made  in  good  faith,  upon  a  valuable  consideration, 
and  when  they  are  just,  reasonable  and  certain  in  their  terms.''' 
And  although,  at  common  law,  contracts  between  a  man  and 
woman  would  be  extinguished  by  subsequent  intermarriage, 
yet  in  equity  the  parties  will  be  compelled  to  execute  them. 
Of  such  agreements  illustrations  may  be  found  in  those  cases  in 
which  antenuptial  contracts  are  made  without  the  intervention 
of  trustees."* 

115.  Contracts  for  separation. 

Before  leaving  the  subject  of  trusts  for  married  women,  it 
will  be  proper  to  say  a  few  words  upon  a  kindred  topic,  namely, 
contracts  for  separation  between  husband  and  wife. 

It  has  been  decided  by  the  highest  authority  and  in  many 
cases,  that  agreements  for  future  separation  are  invalid,  and 
such  must  be  considered  as  the  settled  law  both  in  England  and 
in  the  United  States.^ 


iSims    V.    Rickets,    35    Ind.    181;       Conn.  217;  Fennell's  Estate,  207  Pa. 


Benedict  v.  Montgomeiy,  7  W.  &  S. 
238;  Coates  v.  Gerlach,  44  Pa.  43. 

2  Tennison  v.  Tennison,  46  Mo.  77; 
Bradish  v.  Gibbs,  3  Johns.  Ch.  523; 
Livingston  i".  Livingston,  2  Id.  537; 
More  V.  Freeman,  Bunb.  R.  205;  Lehr 
V.  Beaver,  8  W.  &  S.  102;  Fisher  v. 
Filbert,  6  Pa.  61;  Fallon  v.  MeAlonen, 
15  R.  I.  223;  Bohannon  v.  Travis,  94 
Ky.  59;  Demarest  t\  Terhune,  62  N.  J. 
Eq.  663. 

3Boland    v.    O'Neil,    Admtr.,    72 


309. 

■•See  Neves  v.  Scott,  9  How.  196; 
Imlay  v.  Huntington,  20  Conn.  146; 
West  V.  Howard,  Id.  581;  De  Barante 
V.  Gott,  6  Barb.  492;  Healy  v.  Rowan, 

5  Gratt.  414;  Story's  Eq.  §  1370. 

5  Westmeath  v.  Westmeath,  1  Dow. 

6  C.  519.  Notes  to  Stapilton  v.  Sta- 
pilton,  2  Lead.  Cas,  Eq.  855  (4th  Eng. 
ed.),  where  the  English  authorities 
are  collected;  Hill  on  Trustees,  668-9 
(4th  Am.  ed.);  Perry  on  Trusts,  §  672, 


CH.  IV.] 


TRUSTS   FOR   MARRIED    WOMEN. 


189 


But  agreements  for  immediate  separation,  although  formerly 
discountenanced  as  against  the  policy  of  the  law,  are  now  sus- 
tained in  England,  and  are  looked  upon  with  more  favor  in  this 
country.  In  Wilson  v.  Wilson  ^  it  was  decided  by  the  House  of 
Lords  that  the  Court  of  Chancery  might  compel  parties  to  arti- 
cles for  an  agreement  of  separation  to  execute  a  deed  in  pur- 
suance thereof.  The  agreement,  however,  must  be  founded  on  a 
sufficient  consideration ;  -  and  the  deed  to  be  executed  must 
not  contain  any  conditions  contrary  to  law,  or  in  contravention 
of  public  policy.^  The  contract  must  not  be  entered  into  un- 
advisedly, and  must  contain  suitable  provisions.^ 

A  covenant  not  to  sue  for  the  restoration  of  conjugal  rights 
is  a  proper  covenant  to  insert  in  a  deed  of  separation,  executed 
under  a  decree  of  the  court,  which  directs  articles  of  separation 
to  be  carried  out:  and  such  a  covenant  will  be  enforced  by  an 
injunction  restraining  the  husband  or  wife  from  suing.^  And 
an  injunction  will  be  granted  to  restrain  a  husband  from  molest- 
ing his  wife,  or  a  wife  from  molesting  her  husband,  contrary  to 
covenants  contained  in  deeds  of  separation.*^  Whether  an  in- 
junction would  be  granted  to  restrain  proceedings  for  a  resti- 
tution of  conjugal  rights,  when  there  has  been  merely  an  agree- 
ment for  articles  of  separation,  seems  to  be  doubtful;^  but  it  has 
been  decided  that  if  a  separation  has  taken  place,  and,  subse- 
quently, a  contract  for  reconciliation  is  entered  into,  such  con- 
tract will  be  enforced  in  ecjuity  by  decreeing  the  performance 
of  one  of  its  terms  providing  for  a  conveyance  of  realty.* 


And  see  Evans  v.  Evans,  93  Ky.  510; 
Wilde  V.  Wilde,  37  Neb.  891;  Bowers 
V.  Hutchinson,  67  Ark.  15;  Daniels  v. 
Benedict,  38  C.  C.  A.  598.  In  Hunt 
V.  Hunt,  4  D.  F.  &  J.  221,  the  subject 
will  be  found  most  clearly  explained 
by  Lord  Westbury. 

1  1  H.  L.  Cas.  538;  5  Id.  40.  See, 
also,  Gibbs  v.  Harding,  L.  R.  5  Ch. 
336;  Charlesworth  v.  Holt,  L.  R.  9 
Ex.  38,  and  Hart  v.  Hart,  18  Ch.  D. 
670. 

2Walrond  r.  Walrond,  Johns.  18; 
Beach  v.  Beach,  2  Hill,  260;  Griffin  v. 
Banks,  37  N.  Y.  623. 

3  Vansittart  v.  Vansittart,  2  De  G. 


&  J.  255.     See  Boland  v.  O'Neil,  72 
Conn.  217. 

*  Hungerford  r.  Hungerford,  161 
N.  Y.  550. 

5  Hunt  V.  Hunt,  4  D.  F.  &  J.  221, 
where  the  subject  is  elaborately  ex- 
amined'by  Lord  Westbury;  Wilson  v. 
Wilson,  1  H.  L.  Cas.  538.  See,  also, 
Williams  v.  Baily,  L.  R.  2  Eq.  731; 
Besant  v.  Wood,  12  Ch.  D.  605;  Clark 
V.  Clark,  10  P.  D.  188;  In  re  Abdy, 
Rabbath  v.  Donaldson  [1895],  1  Ch. 
455. 

6  Sanders  v.  Rod  way,  16  Beav.  207; 
Flower  v.  Flower,  20  W.  R.  231. 

7  See    the    remarks    of    Lord    St. 


8  See  Barbour  i-.  Barbour,  49  N.  J.  Eq.  429. 


190 


TRUSTS    FOR   MARRIED   WOMEN. 


[part  I. 


It  is  well  settled  that  when  a  separation  deed  has  been  actually 
executed,  the  court  will  enforce  any  of  its  stipulations  which 
are  in  accordance  with  law.^ 

Some  of  the  more  recent  authorities  in  this  country  have  fol- 
lowed the  ruling  in  Wilson  v.  Wilson.  Thus,  in  Pennsylvania, 
Ohio,  Massachusetts,  Indiana,  and  Arkansas,  the  law  in  that  case 
has  been  expressly  recognized ; '  and  the  doctrine  appears  to  be 
approved  in  Vermont.^ 

In  other  states,  however,  it  has  been  held  that  equity  will  re- 
fuse to  decree  specific  performance  of  separation  articles.'*  But 
in  so  far  as  such  agreements  settle  the  rights  of  property  between 
husband  and  wife,  they  will,  if  just  and  equitable,  be  upheld.^ 

In  England,  and  in  some  of  the  United  States,  the  interven- 
tion of  a  trustee  in  a  separation  deed  does  not  now  appear  to  be 
necessary;  ^  but  in  other  states  the  decisions  are  the  other  way.^ 


Leonards  in  Wilson  v.  Wilson,  5  H. 
L.  Cas.  59,  60;  and  of  Lord  Chelms- 
ford in  Vansittart  v.  Vansittart,  2  De 
G.  &  J.  255. 

1  See  Vansittart  v.  Vansittart,  2  De 
G.  &  J.  255;  note  to  Stapilton  v. 
Stapilton,  2  Lead.  Cas.  Eq.  853. 

2  Hitner's  Appeal,  54  Pa.  114.  See, 
also,  Button  v.  Duey,  3  Id.  100;  Dill- 
inger's  Appeal,  35  Id.  357;  Comm.  v. 
Richards.  131  Id.  218;  Thomas  v. 
Brown,  10  Ohio  St.  250;  Fox  v.  Davis, 
113  Mass.  255;  Dutton  v.  Dutton,  30 
Ind.  455;  Bowers  v.  Hutchinson,  67 
Ark.  15.  See  Smith  v.  Knowles,  2  Gr. 
Cas.  413,  where  a  parol  agreement  for 
separation  was  held,  under  the  cir- 
cumstances, invalid! ;  and  also  Switzer 
V.  Switzer,  26  Gratt.  574. 

3  See  Barron  v.  Barron,  24  Vt.  375. 
*  See  Champlin  v.  Champlin,  1  Iloff. 

Ch.  55;  Simpson  v.  Simpson,  4  Dana, 
140;  Rogers  v.  Rogers,  4  Paige  Ch. 
518;  Carter  v.  Carter,  14  Sm.  &  M.  59; 
McCrocklin  v.  McCrocklin,  2  B.  Mon. 
370;  Collins  v.  Collins,  Phil.  Eq.  153; 
Hill  on  Trustees,  669  (4th  Am.  ed.); 
Switzer  v.  Switzer,  26  Gratt.  574; 
Tallinger  v.  Mandeville,  113  N.  Y. 
427,  annotated  in  28  Am.  Law  Reg. 
(N.  s.)  471,  and  Baum  v.  Baum,  109 


Wis.  47,  where  specific  performance 
of  a  partially  executed  oral  agreement 
was  refused.  But  see  Clark  v.  Fos- 
dick,  118  N.  Y.  14.  A  contract  for 
maintenance,  after  a  separation  has 
taken  place,  will  be  enforced.  Galu- 
sha  ?'.  Galusha,  116  N.  Y.  635;  As- 
pinwall  V.  Aspinwall,  49  N.  J.  Eq. 
302;  Mockridge  v.  Mockridge,  62  Id. 
570. 

5  Carey  v.  Mackey,  82  Me.  516; 
Rains  v.  Wheeler,  76  Tex.  390;  King 
V.  MoUohan,  61  Kan.  683.  See  Foots 
V.  Nickerson,  70  N.  H.  496,  for  a 
qualification  of  the  doctrine  and  an 
elaborate  review  of  the  authorities. 

8  Frampton  v.  Frampton,  4  Beav. 
294;  Hutton  v.  Duey,  3  Pa.  100;  Bar- 
ron V.  Barron,  24  Vt.  375;  Bowers  r. 
Hutchinson,  67  Ark.  15. 

7  Bettle  V.  Wilson,  14  Ohio,  257; 
Carson  v.  Murray,  3  Paige  Ch.  483; 
Tourney  v.  Sinclair,  3  How.  (Miss.) 
324;  Watkins  v.  Watkins,  7  Yerg.  283; 
Simpson  r.  Simpson,  4  Dana,  140; 
Carter  i;.  Carter,  14  Sm.  &  M.  59;  Hill 
on  Trustees,  669  (4th  Am.  ed.); 
Perry  on  Trusts,  §  673.  See  gener- 
ally, on  contracts  for  separation,  1 
Bishop  on  Mar.,  Div.  and  Separa- 
tion, §§1288  et  seq. 


CH.  v.] 


TRUSTS   FOR   CHARITIES. 


191 


CHAPTER  V. 


TRUSTS    FOR    CHARITIES. 


116.  Uncertainty    in    the    object    a 

characteristic  of  a  charitable 
use. 

117.  Importance  of  charitable  uses. 

118.  Origin  of  charitable  uses;  Vidal 

V.  Girard's  Executors. 

119.  Statute  of  Elizabeth. 

120.  Classification  of  charitable  gifts; 

Gifts   for   eleemosynary    pur- 
poses. 

121.  Gifts  for  educational  purposes. 

122.  Gifts  for  religious  purposes. 

123.  Gifts  for  public  purposes. 

124.  Definition   of  a  charitable  use; 

Mr.  Binney's  definition;  Jack- 
son V.  Phillips. 


125.  Characteristics   of  a    charitable 

use;  uncertainty  of  the  object. 

126.  The  cy  pres  doctrine. 

127.  Jackson  v.  Phillips. 

128.  Cy    pres    doctrine    in    England 

prerogative  and  judicial. 

129.  Soundness  of  the  latter  doctrine. 

130.  Rules  of  the  different  states. 

131.  Nature  of  the  uncertainty  which 

should  avoid  a  charitable  gift. 

132.  Resulting  trusts  in  cases  of  char- 

itable   gifts;    Thctford    Schvl 
Case. 

133.  Perpetuities  and  Accumulations. 

134.  Statutes  of  Mortmain. 


116.  Uncertainty  in  the  object  a  cliaracteristic  of  a  char- 
itable use. 

It  has  already  been  said  that  three  things  are  necessary  to 
raise  a  valid  trust — sufficient  words  to  create  it,  a  definite  sub- 
ject, and  a  certain  or  ascertained  object.  To  this  rule  there  is  a 
very  noticeable  exception  in  the  cases  of  trusts  for  charitable 
uses,  wherein  the  trust  will  be  sustained  although  the  objects 
to  he  benefited  may  not  be  defined  with  that  precision  which 
would  be  reciuisite  in  trusts  of  an  ordinary  or  private  descrip- 
tion. Uncertainty  in  the  object  is  one  of  the  characteristics  of  a 
true,  technical,  charitable  use,  becau.se  if  the  beneficiaries  are 
defined  with  precision,  the  ordinary  doctrines  of  equity,  which 
have  been  already  referred  to,  would  be  .sufficient  to  support  it. 

It  is  when  a  trust,  which,  if  it  were  for  an  individual,  would 
fail  for  want  of  certainty  in  the  object,  is  supported  in  ecjuil}' 
because  it  is  for  a  charity  that  the  term,  charitable  use,  is  to  b(^ 
in  strictness  a{)plicd.  A  trust  for  a  charity  which  is  declared 
with  the  same  certainty  in  all  respects  as  ordinary  trusts,  is,  of 


192 


TRUSTS    FOR   CHARITIES. 


[part 


courso,  capable  of  being  sustained  by  the  ordinary  rules  of  prop- 
erty; '  but  a  trust,  which,  according  to  those  rules,  would  fail 
for  uncertainty,  is  upheld  in  chancery  when  the  beneficiaries 
are  objects  of  charity,  and  is  then  a  charitable  use.^ 

117.  Importance  of  charitable  uses. 

Trusts  for  charitable  uses  have  occupied  a  large  share  of  the 
attention  of  Courts  of  Chancer}^  both  in  England  and  in  this 
country ;  and  it  is  perhaps  not  too  much  to  say  that  in  the  Fed- 
eral courts  and  in  the  tribunals  of  many  of  the  states  of  the 
Union  the  questions  which  grow  out  of  the  doctrine  of  chari- 
table uses  have  been  discussed  with  a  degree  of  industry,  of 
learning,  and  of  research  that  can  scarcely  be  paralleled  in  the 
annals  of  jurisprudence.  A  reference  to  the  reports  of  the  great 
cases  in  which  the  wills  of  Stephen  Girard,  of  Sarah  Zane,  and 
of  Francis  Jackson  were  construed  will  be  sufficient  to  bear  out 
the  correctness  of  this  assertion.^ 


1  Thus  a  devise  to  a  corporation  to 
distribute  the  rents  among  twenty- 
four  persons  named,  is  not  charitable, 
but  it  gives  a  vested  right  to  each  of 
the  cestui  que  tnistent.  Liley  v.  Hey, 
1  Hare,  580.  And  a  gift  for  the  bene- 
fit and  care  of  certain  specified  horses, 
ponies  and  hounds  is  not  a  charitable 
gift,  for  the  objects  are  defined.  In  re 
Dean,  41  Ch.  D.  556.  "If  a  trust  is 
for  any  particular  persons,  it  is  not  a 
charity.  Indefiniteness  is  of  its  es- 
sence;" by  Sharswood,  J.,  in  Phila- 
delphia V.  Fox,  64  Pa.  182.  See,  also. 
Swift's  Ex'rs  r.  The  Beneficial  Soci- 
ety, 73  Pa.  362;  Old  South  Society  v. 
Crocker,  119  Mass.  1;  Att.-Gen.  v. 
Clark,  167  Mass.  203;  Fay  v.  Howe, 
136  Cal.  599,  and  Troutnian  v.  De 
Boissiere,  66  Kan.  1.  Trusts  to  say 
masses  for  the  soul  of  a  particular 
individual  have  been  held  not  to  be 
charitable  uses.  Festorazzi  v.  St. 
Joseph's  Cath.  Church,  104  Ala.  327; 
Brannigan  v.  Murphy  [1896],  1  Ir.  R. 
418.  Contra,  Webster  v.  Sughrow, 
69  N.  H.  380;  Coleman  r.  O'Learj^'s 
Ex'r,  114  Ky.  388.  But  a  bequest  to 
say  masses  publicly  has  been  held  a 


good  charitable  bequest.    Att.-Gen.  v. 
Hall  [1896],  2  Ir.  R.  291. 

2  Jackson  v.  Phillips,  14  Allen,  550; 
Board  of  Comm'rs  of  Rush  Co.  v.  Din- 
widdie,  139  Ind.  128;  Perry  on  Trusts, 
§  687.  See  Harrington  v.  Pier,  105 
Wis.  485,  and  Hood  v.  Dorer,  107  Id. 
149,  where  Ruth  r.  Oberbrunner,  40 
Id.  263,  is  limited  and  explained  and 
the  language  of  the  statute  in  that 
state  considered.  See  Barkley  v. 
Donnelly,  112  Mo.  561. 

3  Vidal  V.  Girard 's  Executors,  2 
How.  128;  Philadelphia  v.  Girard 's 
Heirs,  45  Pa.  27;  Magill  v.  Brown, 
Brightly,  350;  Jackson  r.  Phillips,  14 
Allen,  539;  Minns  v.  Billings,  183 
Mass.  126.  See,  also,  Baptist  Asso- 
ciation r.  Hart's  Ex'rs,  4  Wheat.  1; 
Inglis  V.  Sailor's  Snug  Harbor,  3  Pet. 
99;  Fontain  v.  Ravenel,  17  How.  387; 
Perin  i;  Carey,  24  Id.  506;  Lorings  v. 
Marsh,  6  Wall.  337;  Gallego's  Ex'rs  v. 
Att.-Gen.,  3  Leigh,  450;  Kinnaird  v. 
Miller's  Ex'rs,  25  Graft.  107;  Witman 
V.  Lex,  17  S.  &  R.  88;  Methodist 
Church  V.  Remington,  1  Watts,  218; 
Henry  v.  Deitrich,  84  Pa.  291; 
Dickson  v.  Montgomery,  1  Swan.  448; 


CH.  v.]  TRUSTS   FOR   CHARITIES.  193 

118.  Origin  of   charitable  uses;     Vidal  v.    Girard's  Exec- 
utor x. 

These  trusts  had  been  at  one  time  supposed,  both  in  England 
and  in  this  country,  to  owe  their  origin  to  the  Statute  of  43 
EHzabeth,  c.  4,  commonly  known  as  the  Statute  of  Charitable 
Uses;  which  was,  in  point  of  fact,  an  act  designed  merely  to 
hunt  up  existing  charities  and  enforce  their  administration ;  but 
which,  because  it  enumerated  certain  trusts  as  charitable,  came 
to  be  referred  to  as  the  origin  of  the  jurisdiction  of  chancery 
over  charitable  uses,  and  as  defining  those  uses  which  were  to  be 
considered  charitable.  This  opinion  existed  in  England,^  and 
was  adopted  in  the  United  States  in  the  case  of  the  Trustees  of 
the  Baptist  Church  v.  Hart's  Executors.'  In  1844,  however, 
in  the  great  case  of  Vidal  v.  Girard's  Executors,^  this  opinion 
was  shown  to  be  erroneous.  In  his  celebrated  argument  in  that 
case,  Mr.  Binney ,  one  of  the  counsel  for  the  will  of  Stephen  Girard, 
showed,  by  reference  to  the  proceedings  of  the  Court  of  Chancery 
in  the  time  of  Queen  Elizabeth  (which  had  been  published  by 
order  of  the  record  commission),  that  that  tribunal  had  exer- 
cised jurisdiction  over  trusts  of  this  description  prior  to  the 
passage  of  the  Statute  of  Charitable  Uses.  The  cases  mentioned 
in  the  report  of  the  record  commission  are  about  fifty  in  number; 
and  although  as  to  some  of  them  it  may  not  be  satisfactorily 
demonstrated  that  they  were  instances  of  charitable  uses,  yef, 
upon  the  authority  of  these  precedents,  it  is  now  settled  that  the 
jurisdiction  of  chancery  upon  this  subject  does  not  depend  upon 
the  statute,  but  existed  independently  of,  and  prior  to,  that  en- 
actment. 

In  the  struggle  with  the  pope,  Henry  VIII.  ^^■as  obliged  to 
attack  many  charitable  institutions  for  the  purpose  of  asserting 
the  power  of  the  crown  as  against  the  claim  of  papal  supremacy; 
and  hence  many  charities  were  abolished  by  statute.'*    But  in 
the  reign  of  Elizabeth,  after  the  conflict  for  ecclesiastical  su- 
premacy had  been  settled  in  favor  of  the  English  monarch,  and 
the  success  of  the  Reformation  had  been  assured,  the  necessity 
for  institutions  of  an  eleemosynary  character  began  to  reassert 
itself,  and  several  statutes  were  passed  for  the  purpose  of  re- 
Green  V.  Allen,  5  Humph.  177;  Frier-  i  1  Spence's  Eq.  589. 
son  V.  Gen.  Assem.  Presb.  Church,  7           24  Wheat.  1. 
Heisk.  693;  Almy  v.  Jones,  17  R.  I.           3  2  How.  128. 
265.                                                                   •«  Perry  on  Trusts,  §  691. 

13 


194  TRUSTS    FOR   CHARITIES.  [PART  I. 

storing  and  encouraging  charitable  foundations.^  These  acts 
finally  culminated,  in  the  year  1601,  in  the  Statute  of  Charitable 
Uses,  already  mentioned.^ 

The  question  as  to  the  origin  of  the  jurisdiction  upon  this 
subject  has  this  practical  importance — viz.,  that  in  those  states 
where  the  statute  of  Elizabeth  is  not  in  force  or  has  not  been 
adopted,  the  right  of  courts  of  equity  to  assume  control  over 
questions  of  this  kind  must  depend  upon  their  original  jurisdic- 
tion.^ 

119.  Statute  of  Elizabeth. 

WTiile,  however,  the  statute  of  Elizabeth  is  not  to  be  regarded 
as  the  origin  of  charitable  uses,  it  has  always  been  looked  to  as 
furnishing  a  definition  of  what  uses  are  to  be  considered  as 
charitable ;  although  in  those  states  in  which  the  statute  is  not  in 
force  the  courts  will  not  confine  themselves  to  the  objects  enum- 
erated in  the  statute.'*  These  uses  are  set  forth  in  the  preamble 
to  the  statute,  and  are  as  follows:  "The  relief  of  aged,  and  im- 
potent, and  poor  peoj)le;  the  maintenance  of  sick  and  maimed 
soldiers  and  mariners;  schools  of  learning;  free  schools;  scholars 
in  universities;  houses  of  correction;  repairs  of  bridges,  ports, 
havens,  causeways,  churches,  sea-banks  and  highways;  the 
education  and  preferment  of  orphans;  the  marriages  of  poor 
maids;  supportation  and  help  of  tradesmen,  handicraftsmen, 
and  persons  decayed;  the  relief  or  redemption  of  prisoners  or 
captives ;  and  aid  or  ease  of  any  poor  inhabitants  concerning  the 
payment  of  fifteenths,  setting  out  of  soldiers  and  other  taxes." 
In  addition  to  the  above,  many  other  objects  have  been  decided 
to  be  charitable,  because  they  were  analogous  to  those  mentioned 
in  the  statute,  and  were  considered  to  be  in  conformity  with  the 
spirit  of  the  ])reamble,  or,  in  other  words,  although  not  within 
the  strict  letter  of  the  statute,  they  have  been  held  to  fall  within 
its  "equity."    Thus  a  gift  for  the  " advancement  of  the  Christian 

'  1  Eliz.  <'.  4,  §§  34,  40,  85;  8  Id.  .52.5;  Holland  r.  Alcock,  108  Id.  3,32; 

c.  11;  3.5  Id.  0.  3;  39  Id.  r.  4,  21;  31  Halsey  r.  Convention  of  Protestant 

Id.  c.  6;  43  Id.  c  2  and  3.     Perry  on  Epis.   Church,   7.5   Md.   225;   Trinity 

Tnists,    §  091 .  Meth.  Epis.  Ch.  r.  Baker,  91  Md.  539; 

243   Eliz.   0.   4;    Perrj-  on  Trusts,  Harrington    ?".    Pier,    105   Wis.    485; 

§692.    See  Commissioners  r.  Pemsel  Clayton    r.    Hallett,    30    Colo.    231; 

[1891],  App.  Cas.  531-.581.  Snider  v.  Snider,  70  S.  C.  555. 

^See  Pell  v.  Mercer,  14  R.  1.  412;  <  Witman  v.  Lex,  17  S.  &  R.  88; 

R.  I.  Hosp.  Trust  Co.  r.  Olney,  Id.  Tappan  v.  Deblois,  45  Me.  122;  Har- 

449;  Williams  v.  Williams,  8  N.  Y.  rington  v.  Pier,  105  Wis.  485. 


CH.  v.] 


TRUSTS    FOR   CHARITIES. 


195 


religion  among  infidels"  is  a  good  charity.^  So  is  a  gift  for  re- 
pairing a  church; '  for  building  an  organ-gallery;  ^  for  repairing 
a  parsonage ;  "*  or  for  the  "worship  of  God."  ^  A  gift  for  purposes 
of  education  is  a  charity,®  and  so  is  a  gift  to  a  town  for  public 
improvements.^  On  the  other  hand,  trusts  "for  the  pohtical 
restoration  of  the  Jews  to  Jerusalem;"'  *  "to  secure  the  passage 
of  laws  granting  women  a  right  to  vote  and  hold  office;"  ^  " for  a 
corporation  to  enable  it  to  keep  a  larger  supply  of  corn  in  Lon- 
don for  the  market;"  ^"  "to  build  a  monument,  tomb,  or  vault 
for  the  donor;"  ^^  "for  the  purchase  of  advowsons  or  presenta- 
tions;" ^^  for  the  presentation  of  a  prize  cup  "to  encourage 
yacht-racing,"  "  are  illustrations  of  gifts  which  have  been  de- 


1  Att.-Gen.  v.  William  and  Mary's 
College,  1  Ves.  Jr.  245. 

2  Att.-Gen.  v.  Ruper,  2  P.  Wms. 
125. 

3  Att.-Gen.  v.  Oakaver,  1  Ves.  Sr. 
536. 

*  Legard  v.  Hodges,  3  Bro.  C.  C.  441. 

5  Att.-Gen.  v.  Pearson,  3  Merv.  353. 
See  Decamp  v.  Dobbins,  29  N.  J.  Eq. 
36. 

8  Vidal  V.  Girard  (supra);  Whicker 
V.  Hume,  7  H.  L.  Cas.  124;  Smith- 
sonian Inst.  Case,  Id.  *155  (cited). 

7  Att.-Gen.  v.  Heelis,  2  S.  &  St.  67. 

So  again  a  testator  gave  his  resid- 
uary personalty  upon  trust  for  the 
officers'  mess  of  his  regiment,  to  be 
invested  and  the  income  to  be  ap- 
plied in  maintaining  a  library  for  the 
officers'  mess  for  ever,  any  surplus 
to  be  expended  in  the  purchase  of 
plate  for  the  mess.  He  then  directed 
that  two  houses,  part  of  the  residu(% 
should  be  for  the  use  of  old  officers  of 
the  regiment  at  a  small  rent  during 
their  lives: 

Held,  that  the  gift  of  residue  to 
maintain  a  library  and  to  purchase 
plate  for  the  officers'  mess,  being  for  a 
general  public  purpose  tending  to  in- 
crease the  efficiency  of  the  army  and 
Jiid  taxation,  was  a  good  charitable 
bequest : 

Held,  also,  that  the  gift  might  be 


supported  as  a  "setting  out  of  sol- 
diers" within  the  meaning  of  those 
words  in  the  statute  of  Elizabeth: 

But,  held,  that  the  gift  of  the 
houses  was  void  for  perpetuity,  and 
that  the  houses  did  not  fall  back  into 
the  residue,  but  were  undisposed  of. 
Harington  r.  Watts  [1905],  2  Ch.  60. 

8  Habershon  v.  Vardon,  7  Eng.  L. 
&  Eq.  228;  4  De  G.  &  Sm.  467. 

8  Jackson  v.  Phillips,  14  Allen,  571. 

1"  Att.-Gen.  v.  Haberdashers'  Co.,  1 
My.  &  K.  420. 

11  Hoare  v.  Osborne,  L.  R.  1  Eq. 
5S5;  though  see  Adnam  v.  Cole,  6 
Beav.  353.  To  keep  certain  graves 
in  repair  is  not  a  charity.  Kelly  v. 
Nichols,  17  R.  I.  306;  Estate  of  Gay, 
138  Cal.  552.  A  society  for  the  pur- 
pose of  benevolence  among  its  mem- 
bers only,  is  not  a  charity.  Beaumont 
r.  Meredith,  3  V.  &  B.  180;  Babb  v. 
Reed,  5  Rawle,  151;  Swift  7'.  Benefi- 
cial Society,  73  Pa.  362;  Cunnack  i\ 
Edwards  [1896],  2  Ch.  681;  Young 
Men's  Society  v.  Fall  River,  160  Mass. 
409;  Mason  v.  Perry,  22  R.  I.  475; 
Troutman  v.  De  Boissiere,  66  Kan.  1; 
City  of  Newport  v.  Masonic  Temple 
Assn.,  108  Ky.  333. 

12  In  re  Hunter,  Hood  *.  Att.-Gen. 
[1897],  1  Ch.  518. 

13  In  re  Nottage,  Jones  v.  Palmer 
[1895],  2  Chan.  649. 


196 


TRUSTS    FOR   CHARITIES. 


[part  I. 


termined  not  to  be  charities.^  A  gift  for  "charity"  or  for 
"charitable  purposes,"  or  for  "benevolent '"institutions,  without 
addino;  more,  is  a  good  charitable  bequest; "  and  so  is  a  gift  to  a 
charitable  association,  although  no  charitable  use  is  designated.'' 

120.  Classification  of  charitable  gifts  ;  Gifts  for  eleemosy- 
nary purposes. 

The  purposes  for  which  charitable  gifts  may  be  made  are  so 
numerous  that  it  is  almost  impossible  to  classify  them;  never- 
theless, the  four  following  heads, ^  without  including  all  possible 
charitable  bequests,  may  be  said  to  embrace  a  large  majority 
of  them : — 

1.  Gifts  for  strictly  eleemosynary  purposes,  such  as  "to  the 
poor,"  ^  "to  a  parish,"  ^  "for  releasing  poor  debtors,"  ^  "for  a 
hospital,"  *  "  for  orphans," "  "  for  the  benefit  of  fugitive  slaves,"  '" 
"  for  poor  relations,"  ^'  "  for  the  relief  of  Indians," ''  "  for  the  relief 


1  In  the  case  of  In  re  Faveaux, 
Cross  V.  London  Anti-Vivisection  So- 
ciety [1895],  2  Ch.  501,  it  was  held 
that  a  gift  to  discourage  vivisection  of 
animals  was  a  charitable  gift.  A  gift 
for  "philanthropic"  purposes  is  not  a 
charity.  In  re  Macduff,  Macduff'  r. 
Macduff  [1896],  2  Ch.  466. 

2  Legg  V.  Asgill,  1  Turn.  &  Rus. 
265,  n.;  Mills  r.  Farmer,  19  Yes.  483; 
s.  c.  1  Mer.  44;  Murphy's  Est.,  184 
Pa.  310;  St.  James  Orphan  Asylum  v. 
Shelby,  60  Neb.  796;  Minns  v.  Bil- 
lings, 183  Mass.  126.  But  see  Adye 
V.  Smith,  44  Conn.  60. 

•'  Evangelical  Association's  Appeal, 
35  Pa.  316;  Am.  Bible  Soc.  v.  Am. 
Tract  Soc,  62  N.  .1.  Eq.  219. 

4  This  was  the  classification  made 
by  Sir  Samuel  Rotuilly  in  his  argu- 
ment in  Morice  v.  The  Bishop  of  Dur- 
h.am,  10  Yes.  522-.532,  and  it  has  Ix'cn 
recently  followed  in  the  House  of 
Lords.  See  Lord  McNaugh ten's  judg- 
ment in  Commissioners  v.  Pemsel 
[1891],  App.  Cas.  583.  See  also  In  re 
Macduff,  Macduff  v.  Macduff  [1896], 
2  Ch.  466. 


5  Att.-Gen.  v.  Matthews,  2  Lev. 
167;  Howard  v.  American  Peace  So- 
ciety, 42  Me.  288;  Asylum  v.  Lefebre, 

69  N.  H.  238;  Heuser  r.  Harris,  42  111. 
425;  Bullard  r.  Chandler,  149  Mass. 
532;  Conklin  r.  Davis,  63  Conn.  377; 
In  re  Darling.  Farquhar  v.  Darling 
[1896],  1  Ch.  50;  Grant  v.  Saunders, 
121  la.  80. 

6  Att.-Gen.  r.  Blizard,  21  Beav. 
233;  Att.-Gen.  v.  Old  South  Society, 
13  Allen,  474;  State  v.  Gerard,  2  Iretl. 
Eq.  210;  ShotAvell  v.  Mott,  2  Sand. 
Ch.  46;  Overseers  i\  Tayloe,  Gilm. 
336. 

7  Att.-Gen.  ?•.  Ironmongers'  Co.,  2 
My.  &  K.  576.     See  Haynes  v.  Carr, 

70  N.  H.  463. 

**  Corp.  of  Reading  r.  Lane,  Duke, 
81;  Att.-Gen.  v.  Kell,  2  Beav.  575; 
McDonald  r.  Massachusetts  Hospital, 
120  Mass.  432. 

9  Yidal  r.  Girard's  Ex'rs,  2  Hoav. 
128.  "  For  an  orphans'  home  for  the 
friendless  poor  of  all  denominations." 
Kemmerer  v.  Kemmerer,  233  111.  327. 

10  Jack-son  v.  Phillips,  14  Allen,  571. 

11  Brunsden    v.    Woolredge,    Amb. 


12  Magill  V.  Brown,  Brightly,  347. 


CH.  V.J 


TRUSTS    FOR    CHARITIES. 


197 


of  aged  females/'  '  "for  providing  and  maintaining  a  home  for 
the  aged,"  ^  or  for  widows  and  children  "in  distressed  circum- 
stances," ^  for  "a  rest  home  for  worthy  working  girls,"  "*  or  for 
the  suppression  of  the  manufacture  and  sale  of  intoxicating 
liquors,-'^  "  for  temperance  work  in  said  city,"  ^  or  for  taking  care 
of  domestic  animals/ 

121.  Gifts  for  educational  purposes. 

2.  Gifts  for  educational  purposes;  as  to  a  college  for  educating 
orphans  *  (although  there  may  be  preferences  among  bene- 
ficiaries),^ for  advancement  of  learning/"  libraries,  and  literary 
institutes/^  for  the  diffusion  of  knowledge  among  the  working 


507;  Swasey  v.  American  Bible  Soc, 
57  Me.  527;  Smith  v.  Harrington,  4 
Allen,  566. 

1  Gooch  V.  Association  for  Relief, 
etc.,  109  Mass.  567;  Sherman  v.  Cong. 
Miss.  Soc,  176  Mass.  349;  Eliot's 
Appeal,  74  Conn.  586. 

2  Allen  V.    Stevens,  161  N.  Y.  122. 

3  In  re  Buck,  Bruty  v.  Mackey 
[1896],  2  Ch.  727;  Rowell  v.  Claggett, 
69  N.  H.  201. 

*  Sherman  v.  Cong.  Miss.  Soc,  176 
Mass.  349. 

Also  "to  furnish  homes,  slielter, 
protection,  instruction  and  improve- 
ment to  industrious  girls  and  women, 
while  either  in  or  out  of  employment, 
at  the  lowest  possil>le  cost  to  them 
commensurate  with  maintaining  the 
proper  sense  of  self  respect  on-  the 
part  of  the  beneficiaries  who  .shall 
desire  or  require  the  shelter  of  plain, 
comfortable  and  cheerful  homes,  sur- 
rounded by  good  influence,  attended 
by  proper  and  wholesome  amu.se- 
ments,  presided  over  by  kind  and 
proper  guardian  officers  knowTi  to  be 
interested  in  the  happiness,  prosper- 
ity, self  respect  and  welfare  of  the 
beneficiaries."  Daly's  Est.,  208  Pa. 
58. 

5  Haines   7-.  Allen,  78  Ind.  100. 

«  Harrington   v.  Pier,  105  Wis.  485. 

^  University  of  London  v.  Yarrow, 
1  De  G.  &  J.  72;  In  re  Douglas,  35  Ch. 


D.  479;  Minns  v.  Billings,  183  Mass. 
126. 

«  Vidal  V.  Girard's  Ex'rs,  2  How. 
128;  Clement  v.  Hyde,  50  Vt.  716; 
Miller  V.  Atkinson,  63  N.  C.  537.  See, 
also,  Paschal  v.  Acklin,  27  Tex.  173; 
Miller  v.  Porter,  53  Pa.  292;  Halsey  i'. 
Convent  P.  E.  Church,  75  Md.  275; 
Barkley  v.  Donnelly,  112  Mo.  561; 
Clayton  v.  Hallett.  30  Colo.  231; 
Crow  V.  Clay  County,  196  Mo.  234. 
A  devise  for  the  purpose  of  educating 
the  descendants  of  two  persons  named 
is  not  valid  as  a  charitable  use. 
Johnson  v.  De  Pauw  University',  116 
Ky.  671. 

9  Vidal  V.  Girard's  Ex'rs  (jswpra); 
Dexter  v.  Harvard  College,  176  Mass. 
192;  Washburn  College  v.  O'Hara,  75 
Kan.  700. 

i»  Stevens  v.  Shippen,  28  N.  J.  Eq. 
487;  Taylor  v.  Bryn  Mawr  Coll.,  34 
N.  J.  Eq.  101;  Whicker  v.  Hume,  1 
De  G.,  M.  &  G.  506;  7  H.  L.  Cas.  123. 
See  The  President  of  the  U.  S.  v. 
Drummond  (the  Smithsonian  Institu- 
tion Case),  cited  in  7  H.  L.  Cases, 
*155. 

11  Drury  r.  Inhabitants  of  Natick, 
10  Allen,  169;  Donohugh  v.  Library 
Company  of  Philadelphia,  5  W.  N.  C. 
196  (C.^  P.  No.  2  of  Philadelphia 
County).  In  the  last  case  the  defini- 
tion of  a  public  charity  was  called  for 
with  some  precision.     The  Constitu- 


198 


TRUSTS    FOR   CHARITIES. 


[part  I 


classes/  to  erect  a  free  grammar  school,-  or  to  promote  the 
moral,  intellectual,  and  physical  instruction  of  a  city,^  to  increase 
the  salaries  of  teachers,''  or  ''to  pay  the  fees  of  tuition  and  instruc- 
tion, the  cost  of  text  books,  room  rent  and  reasonable  board,"  ^ 
or  for  the  foundation  of  scholarships  and  fellowships,^  or  the 
cultivation  of  art,^  or  for  instruction  in  mechanical  arts,*  or  "  for 
charitable  and  educational  purposes  therein"  {i.  e.,  the  state  of 
New  Hampshire).^ 

132.  Gifts  for  religious  purposes. 

3.  Gifts  for  religious  purposes;  as  for  the  advancement  cf 


tion  of  Pennsylvania  exempted  from 
taxation  ''institutions  of  purely  pub- 
lic charity;"  antl  the  question  was 
whether  the  Library  Company  of 
Philadelphia  fell  within  that  phrase. 
It  was  held  that  it  did.  "The  Li- 
brary," said  Mitchell,  J.,  in  delivering 
the  opinion  of  the  court  below,  "is  a 
trust,  and  while  it  is  the  property 
of  the  corporation,  and,  therefore, 
in  a  certain  sense,  of  the  corporate 
stockholders,  yet  it  is  not  their  prop- 
erty in  any  full  legal  or  commercial 
sense.  .  .  .  Being  thus  a  trust,  its 
purpose  and  scope  must  be  looked  for 
in  the  grant.  It  is  not  a  question  of 
how  the  revenue  is  derived,  hut  to 
what  purpose  and  with  what  intent  it  is 
devoted."  And  this  view  was  adopted 
by  the  Supreme  Court  (Dono- 
hugh's  Appeal,  86  Pa.  306),  and  sub- 
sequently extended  in  Philadelphia  v. 
Women's  Christian  Association,  125 
Pa.  581;  Northampton  Co.  v.  Lafay- 
ette Coll.,  128  Id.  132;  Episcopal 
Academy  v.  Philadelphia,  150  Id. 
565.  (But  see  White  r.  Smith,  189  Id. 
222.  for  a  criticism  on  these  lasf- 
mentioned  cases.)  The  same  conclu- 
sion had  been  reached  in  the  interjjre- 
tation  of  similar  constitutional  provi- 
sions in  other  states.  Gierke  v.  Purcell, 
25  Ohio,  229,  approved  and  followed 
in  Humphries  V.  The  Little  Sisters,  21) 
Id.  205;  Benevolent  Society  v.  Kell}\ 


28  Oreg.  173;  Church  v.  Hinton,  92 
Tenn.  188.  See,  also,  Burd  Orphan 
Asylum  v.  School  District,  90  Pa.  21; 
Philadelphia  r.  Masonic  Home,  160 
Id.  572;  Philadelphia  w  Keystone 
Battery  A,  169  Id.  526  (the  case  of 
a  military  company  maintained  by 
public  and  private  subscriptions); 
Phila.  V.  Penna.  Hospital,  154  Id.  9; 
Sunday-school  Union  v.  Phila.,  161 
Id.  307;  Penna.  Hospital  v.  Delaware 
Co.,  169  Id.  305,  and  Philadelphia  r. 
Overseers,  170  Id.  257.  See  in  this 
connection,  Miller's  Ex'rsr.  Common- 
wealth, 27  Gratt.  116;  Haley  v. 
Umatilla  Co.,  15  Or.  172;  Fordyce  v. 
Library  Assn.,  79  Ark.  550. 

1  Sweeney  v.  Sampson,  5  Ind.  465. 

2  Hadley  v.  Hopkins  Acad.,  14 
Pick.  240;  State  v.  McGowen,  2  Ired. 
Eq.  9. 

3  Lowell's  Appeal,  22  Pick.  215; 
Pickering  r.  Shotwell,  10  Pa.  27. 

•4  Price  I'.  Maxwell,  28  Pa.  23. 

5  Dexter  v.  Harvard  College,  176 
Mass.  192. 

«  Rex  V.  Newman,  1  Lev.  284;  Att.- 
Gen.  V.  Andrews,  3  Yes.  033;  Case  of 
Jesus  CoL,  Duke,  78;  Aft. -Gen.  v. 
Bowyer,  3  Ves.  714. 

7  Almy  r.  Jones,  17  R.  I.  265;  Hub- 
bard r.  Worcester  Art  Museum,  194 
-Mass.  280. 

»  People  V.  Cogswell,  113  Cal.  129. 

»  Haynes  v.  Carr,  70  N.  H.  463. 


II 


CH.  v.]  TRUSTS   FOR   CHARITIES.  199 

Christianity  among  the  infidels/  for  the  dissemination  of  the 
gospel,'  for  foreign  missions,^  for  distributing  Bibles  and  re- 
ligious tracts/  for  the  benefit  of  ministers  of  the  gospel/  and 
for  building,  ornamenting,  or  repairing  churches.**  It  may  be 
here  observed  that  the  only  religious  use  which  is  mentioned  in 
the  statute  of  Ehzabeth  is  that  for  "repairs  of  churches,"  but 
bequests  for  religious  and  pious  purposes  have  always  been  con- 
sidered within  the  equity  of  the  statute,  and  have  always  been 
upheld.^  It  may  also  be  mentioned,  here,  that  in  England  gifts 
for  superstitious  uses,  that  is,  religious  uses,  which,  according 
to  the  English  ecclesiastical  law,  were  illegal  (as,  for  example, 
the  maintenance  of  a  priest  to  pray  for  the  soul  of  the  donor), 
were  void.  But  in  the  United  States  there  are  no  uses  which  can 
be  denominated  superstitious.*  A  trust,  however,  for  an  infidel 
society  cannot  be  sustained.  ^ 

123.  Gifts  for  public  purposes. 

4.  Gifts  for  erecting  or  maintaining  public  buildings  or  works, 
or  otherwise  lessening  the  burdens  of  government ;  ^"  and  under 
this  head  may  be  comprehended  all  trusts  for  the  building  or 

1  Att.-Gen.  r.  William  and  Mary's  A  fund  of  which  the  income  is  to 

College,  1  Ves.  Jr.  243.  be  devoted  to  religious  uses  in  con- 

-  Att.-Gen.  \\  Wallace,  7  B.  Men.  nection  with  a  particular  church,  is 
611;  Burr  v.  Smith,  7  Vt.  241;  Hinck-  a  public  charity.  Sears  v.  Attorney- 
ley  V.  Thatcher,  139  Mass.  477.  General,  193  Mass.  551.     A  devise  to 

3  Bartlet  v.   King,   12     Mass.   537;  a  church  for  the  use  and  benefit  of 

Fairbanks  r.  Lamson,  99  Id.  533.  sich  church  is  a  good  charitable  de- 

•*  Att.-Gen.  v.   Stepney,  10  Ves.  22;  vise.     Biscoe    v.    Thweatt,   74   Ark. 

Winslow  V.  Cummings,  3  Gush.  358;  545. 

Bliss  r.  American  Bible  Soc,  2  Allen,  ^  Perry   on   Trusts,     §701;    In   re 

334;  Pickering  v.  Shotwell,  10  Pa.  23;  White,  White  v.  White  [1893],  2  Ch. 

Church  V.  Hinton,  92  Tenn.  188.  41. 

5  Att.-Gen.  v.  Gladstone,  13  Sim.  7;  »  Methodist  Church   v.  Remington, 

Cory  Universalist  Soc.  v.  Beatty,  28  1  Watts,  218;  Gass  y.  Wilhite,  2  Dana, 

N.  J.  Eq.  570;  Pember  ^'.  Inhabitants  175;   Holland  v.  Alcock,   108  N.   Y 

of  Kingston,  Toth.  34;  Hood  v.  Dorer,  312;    Miller   v.    Porter,   53   Pa.    292 

107  Wis.  149;  Staines  v.  Burton,  17  Webster  v.  Sughrow,  69  N.  H.  380 

Utah,  331.  Harrison    v.    Brophy,    59    Kan.     1 

8  See   cases    cited,  supra,    p.    195,  Jones  v.  Watford,  64  N.  J.  Eq.  785 

notes;  also  McAlister  v.  Burgess,  161  Coleman  v.  O'Leary's  Ex'r,  114  Ky 

Ma.ss.    269;    Paine    v.    Forney,    128  388. 

N.    C.    237;    St.    Peter's    Church    v.  »  Zeisweiss  v.  James,  63  Pa.  465- 

Brown,  21  R.  I.  367.     "For  the  sup-  471. 

port    of    the    church."      Osgood    v.  lo  Jackson    i'.  Phillips,     14    Allen, 

Rogers,   186  Mass.  238.  556. 


200  TRUSTS   FOR   CHARITIES.  [PART    I. 

repair  of  bridges,  ports,  causeways,  sea-banks,  for  paving,  cleans- 
ing and  lighting  a  town,  for  erecting  town  houses,  laying  out  and 
maintaining  public  parks,  for  supporting  military  organizations, 
and  becjuests  of  a  like  character.^ 

It  may  be  remarked,  here,  that  when  the  subject  of  the  trust 
is  not  the  result  of  a  gift,  but  of  a  contract  or  a  statute,  the  use 
will  not  be  a  charitable  one,  for  charity  is  necessarily  based  upon 
the  idea  of  bounty,  and  cannot  be  predicated  of  an  agreement 
to  devote  money  to  a  benevolent  object,-  or  of  an  assessment  un- 
der a  statute.^ 

Nor  can  a  gift  to  a  business  enterprise  be  considered  a  char- 
itable gift,  nor  will  the  donee,  by  its  acceptance,  be  brought 
under  the  jurisdiction  of  C'ourts  of  Chancery  over  charities. 
Therefore,  when  Congress  ajjpropriated  a  large  sum  of  money 
for  the  coinage  of  memorial  half-dollars,  which  were  to  be  given 
to  the  World's  Columbian  Exposition  in  aid  of  the  cost,  such 
appropriation  did  not  bring  the  gift  within  the  equity  jurisdic- 
tion over  charities.'' 

124.  Definition  of  a  charitable  use. 

From  the  above  statement  of  the  objects  which  have  been 
considered  charitable  uses,  it  will  be  perceived  that  it  is  a  task 
of  no  little  diflriculty  to  give  a  definition  of  a  charitable  use  which 
shall  be  at  the  same  time  accurate  and  comprehensive. 

Sir  William  Grant  ^  said  that  those  purposes  are  considered 
charitable  which  are  enumerated  in  the  Statute  of  43  Elizabeth, 
or  which,  by  analogy,  are  deemed  within  its  spirit  and  intend- 
ment; but  it  has  been  justly  remarked  that  this  definition  leaves 


1  Coggeshall  v.  Pelton,  7  Johns.  Ch.  Thomas  v.  Ellmaker,  1  Pars.  Eq.  98; 

292;  Bethlehem  Borougli  r.  Perse ver-  Humane   Fire   Co.'s  Appeal,  88   Pa. 

ance  Fire  Co.,  81  Pa.  44,5;  Mowry  v.  389;    Smith's   Estate,   Walker's   Ap- 

City  of  Providence,  10  R.  I.  .52;  State  peal,    181    Id.     109;    Beaumont    v. 

V.  Griffith,  2  Del.  Ch.  392-421;  Cres-  Oliveira,  L.  R.  4  Ch.  309. 

son's  Appeal,  30  Pa.  437;  Hamden  v.  -  Brendle  v.  The  Germaa  Reformed 

Rice,  24  Conn.  350;  Magill  v.  Brown,  Cong.,  33  Pa.  419;  Swift  v.  The  Bene- 

Brightly,    347;    Bartlett,    Petitioner,  ficial  Society,  73  Id.  362. 

163  Mass.  ,509;  In  re  Lord  Strathcden  3  Att.-Gen.  v.  Heelis,  2  Sim.  &  Stu. 

and    Campbell    [1894],    3    Ch.    26.5;  77,  per  Sir  J.  Leach,  V.  C. 

Philadelphia  v.  Keystone  Battery  A,  *  World's     Columbian     Exposition 

169  Pa.  .526;  Lackland  v.  Walker,  1.51  Case,  18  U.  S.  App.  42-163. 

Mo.  210;  Stuart  v.  Easton,  39  V.  S.  s  in  Morice  v.  Bishop  of  Durham,  9 

App.   238;    Perry   ou  Trusts,    §  704;  Yes.  405. 


CH.  v.] 


TRUSTS    FOR    CHARITIES. 


201 


something  to  be  desired  in  point  of  certainty,  and  suggests  no 
principle.' 

Mr.  Binney,  in  his  great  argument  in  the  Girard  Will  Case, 
defined  a  charitable  or  pious  gift  to  be  "whatever  is  given  for 
the  love  of  God,  or  for  the  love  of  your  neighbor,  in  the  catholic 
and  universal  sense — given  from  these  motives  and  to  these 
ends — free  from  the  stain  or  taint  of  every  consideration  that 
is  personal,  private,  or  selfish."  '  A  more  concise  and  practical 
rule  is  that  of  Lord  Camden,  adopted  by  Chancellor  Kent,  by 
Lord  Lyndhurst,  and  by  the  Supreme  Court  of  the  United  States 
— "a  gift  to  a  general  public  use,  which  extends  to  the  poor 
as  well  as  to  the  rich."  ^  Mr.  Justice  Grey,  when  on  the  Supreme 
Bench  of  Massachusetts,  in  the  case  of  Jackson  v.  Phillips, 
defined  a  charity  in  its  legal  sense  as  a  gift,  to  be  applied  con- 
sistently with  existing  laws,  for  the  benefit  of  an  indefinite  num- 
ber of  persons,  either  by  bringing  their  minds  or  their  hearts 
under  the  influence  of  education  or  religion,  by  relieving  their 
bodies  from  disease,  suffering,  or  constraint,  by  assisting  them 
to  establish  themselves  in  life,  or  by  erecting  or  maintaining  pub- 
lic buildings  or  works,  or  otherwise  lessening  the  burdens  of 
government.  It  is  inmiaterial  whether  the  purpose  is  called 
charitable  in  the  gift  itself,  if  it  is  so  described  as  to  show  that  it 
is  charitable  in  its  nature.'* 

This  last  definition,  while  not  perhaps  as  concise  as  could  be 
desired,  is  nevertheless  both  clear  and  comprehensive,  and  has 
already  been  adopted  in  text-books  as  the  most  satisfactory 
definition  of  a  charitable  use ;  ^  and  it  has  lately  been  approved 
by  the  Supreme  Court  of  Pennsylvania  in  The  Fire  Insurance 
Patrol  V.  Boyd,  where  the  distinction  between  the  7?iotive  and 
the  purpose  of  the  gift  is  pointed  out  and  the  latter  declared  to  be 
the  true  test.** 


1  Jackson  v.  Phillips,  14  Allen,  555.       Science,  94   Mo.   459;   McDonald   v. 


2Vidal  V.  Girard's  Ex'rs,  2  How. 
128. 

3  Jones  V.  Williams,  Ambl.  652; 
Coggeshall  v.  Pelton,  7  Johns.  Cli. 
294;  Mitford  v.  Reynolds,  1  Phil.  Ch. 
191,  192;  Perin  v.  Carey,  24  How.  506; 
Harrington  v.  Pier,  105  Wis.  485. 

*  14  Allen,  555;  Newcomb  v.  Boston 
Protect.  Dep't,  151  Mass.  215;  Mis- 
souri Historical  Soc.  v.  Academy  of 


Shaw,  81  Ark.  235. 

5  Perry  on  Trusts,  §  697. 

0  The  Fire  Ins.  Patrol  v.  Boyd,  120 
Pa.  624.  This  case  repudiates  the  ap- 
proval of  Mr.  Binney 's  definition 
which  the  court  had  expressed  in 
Price  V.  Maxwell,  28  Pa.  35.  See, 
also,  Un.  Pac.  Ry.  Co.  v.  Artist,  19 
U.  S.  App.  613.  Compare  Newcomb 
V.  Boston  Protect.  Dep't,  151  Mass. 


202  TRUSTS    FOR   CHARITIES.  [PART    I, 

125.  Characteristics  of  a  charitable  use  ;  uncertainty  of  the 
object. 

The  nature  of  a  charitable  use  having  been  explained,  it  will 
be  proper  now  to  point  out  the  principal  characteristics  of  this 
trust  which  have  rendered  it  worthy  of  a  separate  consideration. 
These  are,  first,  the  uncertainty  of  its  objects;  and,  secondly, 
the  perpetuity  of  its  existence. 

It  has  already  been  pointed  out  that  the  chief  characteristic 
of  charitable  uses  was  the  fact  that  the  objects  of  the  trust  were 
always,  to  a  greater  or  less  extent,  uncertain ;  ^  and  this  charac- 
teristic of  charitable  uses  has  led  to  a  doctrine  peculiar  to  trusts 
of  this  sort,  viz.,  that  known  as  the  cy  pres  doctrine. 

126.  The  CI/  pres  doctrine. 

The  cy  pres  doctrine  has  been  much  discussed,  if  not  a  little 
severely  criticised,  and  in  many  cases  misunderstood.  The  very 
clear  statement  of  the  law  upon  this  subject  by  Mr.  Justice 
Grey,  in  Jackson  v.  Phillips,-  has  done  much  ]to  establish  an 
accurate  understanding  of  the  doctrine. 

The  cy  pres  doctrine  is  one  under  which  Courts  of  Chancery 
act,  when  a  gift  for  charitable  uses  cannot  be  applied  according 
to  the  exact  intention  of  the  donor.  In  such  cases  the  courts 
will  apply  the  gift,  as  nearly  as  |)ossible  [cy  pres)  in  conformity 
with  the  presumed  general  intention  of  the  donor;  for  it  is  an 
established  maxim  in  the  interpretation  of  wills,  that  a  court 
is  bound  to  carry  the  will  into  effect  if  it  can  see  a  general  inten- 
tion consistent  with  the  rules  of  law,  even  if  the  particular  mode 
or  manner  pointed  out  by  the  testator  cannot  be  followed.^ 
Good  illustrations  of  this  doctrine  will  be  found  in  the  Baliol 
College  Case,^  and  in  the  Ironmongers'  Case.^ 

127.  Jackson  v.  Phillips. 

Another  instructive  example  may  be  found  in  the  case  of 
Jackson  v.  Phillips."    There,  one  of  the  trusts  in  the  will  was 

21.''),  and   Ki-Uy  v.  Nichols,  17  R.  I.  *  Att -Gen.  v.  Guise,  2  Vern.  266; 

306;  18  Id.  62.  Att.-Gen.  v.  Baliol  Coll.,  9  Mod.  407; 

1  Supra,  pp.  191,  192.  Att.-Gen.  v.  Gla.sgow  Coll  ,  2  CoUyer, 

-  14  Allen,  .'S39.  665;  1  H.  L.  Cas.  800 

■5  Jaek.son  r.  Phillips,  14   Mien,  5.'i6;  ^  Att.-Gen.    v.    Ironmongers'    Co., 

Bartlet  v.  Kinjc,  12  Mass.  .543;  Inglis  Vr.  &  Ph.  208. 

V.  .Sailor's  Snug  Harbor,  3  Pet.  117,  «  14  Allen,  571.     See,  also,  Minot  v. 

118;  Moggridge  v.  Thackwell,  7  A'ts  Baker,   147   Mass.   348;   Att.-Gen.  v. 

69.  Briggs,    164    Mass.    561;    Doyle    v. 


CH.  v.]  TRUSTS    FOR   CHARITIES.  203 

for  "the  preparation  and  circulation  of  books  and  newspapers, 
the  delivery  of  speeches,  lectures,  and  such  other  means  as  in 
their  (the  trustees),  judgment  will  create  a  public  sentiment  that 
will  put  an  end  to  negro  slavery  in  this  country,"  and  for  "'the 
benefit  of  fugitive  slaves  escaping  from  the  slaveholding  States." 
After  the  death  of  the  testator,  but  while  the  litigation  upon  his 
will  was  in  progress,  the  amendment  to  the  Constitution  of  the 
United  States  abolishing  slavery  was  adopted.  The  inunediate 
purpose  for  which  the  bequest  was  designed  having  thus  failed, 
the  case  was  referred  to  a  master  to  report  a  scheme,  cy  pres, 
for  the  application  of  the  testator's  bounty,  and  the  fund  was 
ultimately  applied  to  the  New  England  Branch  of  the  American 
Freedmen's  Union  Commission. 

128.   Cy  pres  doctrine  in  England,  prerogative  and  judicial. 

The  above  cases  will  serve  to  illustrate  the  cy  pres  doctrine 
in  its  general  aspect.  In  England,  however,  this  doctrine  ap- 
peared in  two  distinct  shapes.  It  was  applied,  in  the  first  place, 
in  the  exercise  of  a  royal  prerogative,  delegated  to  the  chancellor 
under  the  sign  manual  of  the  crown;  and,  in  the  second  place, 
by  the  chancellor  in  the  exercise  of  his  ordinary  equitable  juris- 
diction. By  virtue  of  the  first  or  prerogative  power,  the  chan- 
cellor assumed  to  direct  a  scheme  for  the  application  of  a  chari- 
table bequest  when  the  particular  charitable  use  designed  by 
the  testator  was  illegal,  and  therefore  void,  or  when  the  gift  was 
for  an  indefinite  charitable  purpose,  and  no  trustees  were  named 
by  the  donor  to  carry  it  out.^  Thus,  where  a  sum  of  money  was 
bequeathed  to  a  Jews'  synagogue,  which  bequest,  according  to 
the  law  of  England,  was  illegal,  it  was  applied  to  the  benefit  of  a 
foundling  hospital.  And  a  bequest  for  the  education  of  poor 
children  in  the  Roman  Catholic  faith  has  been  disposed  of  by 
the  king  under  his  ^gn  manual.-  It  is  obvious  that  such  an 
extravagant  stretch  of  authority  belongs  to  the  executive  rather 
than  to  the  judicial  department  of  government;  but  from  the 
circumstance  that  this  power  was  in  England  exercised  by  a 
judicial  officer  (the  chancellor),  it  has  come  to  be  confounded 
with  the  purely  judicial  cy  pres  doctrine,  and  has  necessarily 
tended  to  bring  the  latter  into  some  disrepute.^    The  judicial 

Whalen,  87  Me.  414,  and  Women's  83;  In  re  Pyne  [1903],  1  Ch;  83.     See 

Christian  Ass'n  v.  Kansas  City,  147  1  Am.  Law  Reg.  (n.  s  )  400,  401. 

Mo.  103.  2  Story's  Eq.  Jurisp.  §  1168. 

1  Moggridge  v.   Thackwell,   7   Ves.  ^  But  that  this  power  exists  some- 


204  TRUSTS   FOR   CHARITIES.  [PART  I. 

cy  pres  doctrine  is  not,  in  fact,  open  to  the  same  objections  as 
the  extraordinary  assumption  of  power  just  described,  and 
within  proper  hmits  seems  to  be  a  reasonable  exercise  of  judicial 
discretion.  The  doctrine  is  this:  Where  a  gift  is  made  to  a  trus- 
tee for  a  charital)le  j)urpos(!,  the  general  nature  of  which  is 
pointed  out,  and  which  is  lawful  and  valid  at  the  time  of  the 
death  of  the  testator,  and  no  intention  is  expressed  to  limit  it  to  a 
particular  institution  or  mode  of  application;  and  afterwards, 
either  by  change  of  circumstances  the  scheme  of  the  testator  be- 
comes impracticable,  or  by  change  of  law  becomes  illegal,  the 
fund,  having  once  vested  in  the  charity,  does  not  go  to  the  heirs- 
at-law  as  a  resulting  ti'ust,  but  is  to  be  applied  by  the  Court  of 
Chancery,  in  the  exercise  of  its  jurisdiction  in  equity,  as  near  the 
testator's  particular  directions  as  possible,  to  carry  out  his  gen- 
eral charitable  intent.^  The  doctrine  as  thus  stated  is  well  settled 
by  the  highest  authority  in  England,^  and  has  received  the 
sanction  of  decisions  in  this  country,  in  which  the  subject  has 
been  most  thoroughly  and  ably  considered.  In  the  Mormon 
Church  Case  Mr.  Justice  Bi-adley,  of  the  Suprenie  Court  of  the 
United  States,  sunnned  up  the  result  of  the  cases  thus:  "A  lead- 
ing and  prominent  principle  prevailing  in  them  all  is  that  prop- 
erty devoted  to  a  charitable  and  worthy  object,  promotive  of  the 
public  good,  shall  l)e  a])j)licd  to  the  purposes  of  its  dedication, 
and  protected  from  sjjoliation  and  from  diversion  to  other  ob- 
jects. Though  devoted  to  a  particular  use,  it  is  considered  as 
given  to  the  public,  and  is,  therefore,  taken  under  the  guardian- 

u'here  in  all  sovereignties,  whether  in  tinction  pointed  out  in  the  text  does 
the  executive  and  legislative  or  in  the  not  seem  to  be  clearly  explained, 
judicial  branches,  is  apparent  from  '  Jackson  r.  Phillips,  14  Allen,  586. 
the  decision  in  the  Mormon  Church  2  Att.-Gen.  v.  Guise,  2  Vern.  206; 
Case,  136  F.  S.  1.  The  term,  cy  Att.-Gen.  t;.  Baliol  Coll.,  9  Mod.  407; 
fre^,  has  also  been  used  to  designate  Att.-Gen.  v.  Glasgow  Coll.,  2  Collyer, 
the  rule  of  construction  which  has  665;  1  H.  L.  Cas.  800.  See,  also, 
sometimes  been  applied  to  executory  Bloomfield  v.  Stowe-market,  Duke  on 
devises  or  powers  of  appointment  to  Uses,  624;  Att.-Gen.  v.  Hicks,  3  Bro. 
individuals,  in  order  to  avoid  the  ob-  C.  C.  166,  note;  Att.-Gen.  v.  Craven, 
jection  of  remoteness.  It  was  this  21  Beav.  392;  Moggridge  v.  Thack- 
doctrine  which  has  been  condemned  well,  7  Ves.  36;  Att.-Gen.  ik  Iron- 
by  Lord  Kenyon  and  Lord  Eldon.  mongers'  Co.,  2  My.  &  K.  576;  2 
See  Brudenell  v.  Ehves,  1  East,  451;  Beav.  313;  Cr.  &  Ph.  208;  10  CI. 
Sugden  on  Powers,  chap.  9,  §  9;  &  Fin.  908;  Att.-Gen.  v.  Gibson,  2 
Jackson  v.  Phillips,  14  Allen,  574.  Beav.  317,  note;  Biscoe  v.  Jackson, 
See,  also,  Johnson  v.  Johnson,  92  35  Ch.  D.  400;  In  re  Slevin  [1891], 
Tenn.  519,  where,  however,  the  dis-  1  Ch.  373. 


CH.  v.] 


TRUSTS   FOR   CHARITIES. 


205 


ship  of  the  laws.  If  it  cannot  be  applied  to  the  particular  use 
for  which  it  was  intended,  either  because  the  objects  to  be  sub- 
served have  failed,  or  because  they  have  become  unlawful  and 
rei)ugnant  to  the  public  policy  of  the  state,  it  will  be  applied  to 
some  object  of  kindred  character,  so  as  to  fulfill  in  substance, 
if  not  in  manner  and  form,  the  purpose  of  its  consecration."  ^ 
It  may  be  added  that  this  doctrine  is  applicable  to  cases  in  which 
the  residuary  gift  is  to  charity.  In  other  words,  when  a  par- 
ticular bequest  to  charity  fails,  the  subject  of  the  bequest  will  be 
applied  as  nearly  as  possible  to  that  particular  gift,  and  will  not 
fall  into  a  residuary  legacy  simply  because  that  legacy  also  hap- 
pens to  be  a  charitable  gift.  This  nile  was  laid  down  in  The 
Mayor  of  Lyons  v.  The  Advocate  General  of  Bengal,'  and  the 
conclusion  reached,  after  a  careful  examination  of  the  subject, 
was  that  the  jurisdiction  of  the  court  to  act  upon  the  cy  pres  doc- 
trine, upon  the  failure  of  a  specific  charitable  bequest,  arises 
whether  the  residue  be  given  to  charity  or  not,  unless  upon  the 
construction  of  the  will  a  direction  can  be  implied  that  the  be- 
quest, if  it  fails,  should  go  to  the  residue.^ 


129,  Soundness  of  the  latter  doctrine. 

As  already  stated,  this  doctrine  seems  to  be  free  from  ob- 
jection; for  it  will  be  observed  that  thus  stated  it  avoids  both 
of  the  extravagant  conclusions  to  which  the  prerogative  cy  pres 
doctrine  led.  The  gift,  if  for  a  charity  generally,  must  be  made 
to  trustees,  thus  avoiding  the  mischief  of  turning  the  court  into 
a  tmstee  for  a  general  charity;  "*  while,  on  the  other  hand,  there 
nuist  be  no  intention  to  limit  the  gift  to  a  particular  institution 
or  mode  of  apphcation,  which  avoids  the  obnoxious  cy  pres  doc- 
trine in  those  cases  in  which  bequests  were  made  to  particular 


1  The  Late  Corporation  of  the 
Church  of  Jesus  Christ  of  Latter  Day 
Saints  v.  United  States,  136  U.  S. 
1-61.  The  decree  in  this  case  will 
be  found  in  140  U.  S.  665.  See, 
also,  Jackson  r.  Phillips,  14  Allen, 
580,  and  City  of  Philadelphia  v. 
Girard's  Heirs,  45  Pa.  28. 

2L.  R.  1  App.  Cas.  91. 

3  Id.  See.  also,  Mills  v.  Farmer, 
19  Ves.  486,  and  Ironmongers'  Co. 
V.  Att.-Gen.,  10  CI.  &  F.  908. 

^  "Where  money  is  given  to  char- 


ity generally,"  said  Lord  Eldon  in 
Moggridge  ?'.  Thackwell,  7  Ves.  36, 
"without  trustees  or  objects  selected, 
the  king  is  constitutional  trustee." 
In  other  words,  the  fund,  in  the  ab- 
sence both  of  trustees  and  definite 
objects,  was  applied  at  the  pure  will 
of  the  crown.  It  must  be  remem- 
bered, however,  that  where  there  is  a 
charitable  object  pointed  out,  the 
trust  will  not  be  suffered  to  fail  for 
want  of  a  trustee.  McGirr  v.  Aaron, 
1  Pa.  49.    See  Perry  on  Trusts,  §  722. 


206  TRUSTS   FOR   CHARITIES.  [PART  I. 

charitable  uses,  but  which  were  apphed  by  the  exercise  of  the 
prerogative  to  different  objects,  because  the  use  designated  was 
illegal. 

130.  Rules  of  the  different  states. 

It  is,  nevertheless,  true  that  the  cy  pres  doctrine  has  in  many 
cases  in  the  United  States  been  regarded  with  considerable  dis- 
favor. 

In  Fontain  v.  Ravenel '  the  Supreme  Court  of  the  United 
States  seemed  to  be  opposed  to  the  cy  pres  doctrine;  but  in 
Lorings  v.  Marsh  ^  and  the  Mormon  Church  Case  ^  the  doctrine 
was  approved. 

In  North  Carolina,  Connecticut,  Indiana,  Iowa,  Alabama,  and 
Wisconsin  the  cy  pres  doctrine  has  been  repudiated."*  In  Penn- 
sylvania, although  the  principles  of  the  statute  of  Elizabeth 
were  said  to  have  been  adopted,  the  cy  pres  doctrine  was  re- 
jected; '^  but  the  doctrine  to  a  limited  extent  was  subsequently 
introduced  by  statute.^  In  Maryland  and  Virginia  neither  the 
statute  of  Elizabeth  nor  its  principles  are  in  force,  and  charities 
are  treated  as  ordinary  trusts ;  ^  and  the  same  conclusion  has  at 
last  been  reached  in  New  York,  South  Carolina,  West  Virginia, 
and  Wisconsin;  and  in  Minnesota,  with  certain  exceptions.^ 

1  17  How.  369.  1885,  however,  narrowed  the  limits; 

2  6  Wall.  337.  P.   L.    259.     See,   also,   Zeisweiss   v. 

3  136  U.  S.  1.  James,  63  Pa.  465  (where  Fontain  v. 
*  McAuley  v.  Wilson,   1   Dev.  Eq.       Ravenel  is  approved)  and  Philadel- 

276  (though,  in  the  earlier  case  of  phia  r.  Girard's  Heirs,  45  Id.  27.  But 
Griffin  v.  Graham,  1  Hawks,  96,  the  it  seems  the  doctrine  now  exists  in  all 
tendency  had  been  very  much  the  its  fulness.  Act  of  1889,  P.  L.  173. 
other  way);  Keith  v.  Scales,  124  N.  C.  See  Lennig's  Estate,  31  W.  N.  C.  234 
497;  White  v.  Fisk,  21  Conn.  31;  (per  Penrose,  J.). 
Grimes  ?'.  Harmon,  35  Ind.  198;  7  Dashiell  v.  Att.-Gen.,  5  Har.  &  J. 
Lepage  r.  McNamara,  5  la.  147;  392;  Wilderman  v.  Baltimore,  8  Md. 
Carter  v.  Balfour,  19  Ala.  814;  In  551;  State  v.  Warren,  28  Id.  338  (see 
re  Hoffen's  Est.,  70  Wis.  522  (ex-  Needles  v.  Martin,  33  Id.  618);  Pro- 
plained  and  distinguished  in  Har-  vost  of  Dumfries  v.  Abercrombie,  46 
rington  v.  Pier,  105  Wis.  485);  Id.  172;  Gallego's  Ex'rs  v.  Att.- 
though  see  Williams  ?-.  Pear-son,  38  Gen.,  3  Leigh,  450;  Baptist  Asso- 
Ala.  307.  In  West  Virginia,  see  ciation  r.  Hart's  Ex'rs,  4  Wheat.  1; 
Venable  v.  Coffman,  2  W.  Va.  310;  Halsey  ?•.  Convent.  P.  E.  Church, 
Grant  v.  Saunders,  121  la.  SO.  75  Md.  275;  Trinity  M.  E.  Church  v. 

5  Witman  v.  Lex,  17  S.  &  K.  88.  Baker,  91  Id.  539.    Also  in  Michigan, 

6  Statutes  of  1855,  P.  L.  331;  and  see  Hopkins  v.  Crossley,  132  Mich. 
of  1895,  P.  L.  114;  and  see  Jones  v.  612;  Jordan  v.  Trustees,  107  Va.  85. 
Renshaw,  130  Pa.  333.     The  act  of  »  Bascom  v.  Albertson,  34   N.  Y. 


CH.  v.] 


TRUSTS   FOR  CHARITIES. 


207 


But  in  many  of  the  states,  on  the  other  hand,  the  cy  pres 
doctrine  has  been  received  with  more  favor.  In  all  of  the  New 
England  states  it  has  been  either  directly  countenanced,  or  left 
an  open  question.^  In  Missouri  and  IlHnois  the  doctrine  has 
been  approved.^  In  New  Jersey  the  question  has  not  been  de- 
cided, although  it  has  been  said  that  a  bequest  which  would  be 
enforced  in  England  might  not  be  carried  into  effect  in  that 
state,  on  the  ground  of  the  indefiniteness  of  its  objects,  or  the 
impracticability  of  its  exact  execution.^ 

There  seems,  indeed,  to  be  no  valid  reason  why  the  judicial 
cy  pres  doctrine,  as  explained  in  Jackson  v.  Phillips,  should  not 
be  approved  in  all  those  states  wherein  the  statute  of  Elizabeth 
has  been  decided  to  be  in  force,  or  where  its  principles  have 
been  adopted  by  the  law  of  the  state ;  in  other  words,  in  those 
states  where  the  doctrine  that  indefiniteness  of  the  object  is  no 
objection  to  a  trust,  provided  it  is  for  a  charity,  is  recognized. 
This  is  the  case  in  many  of  the  states  of  the  Union. "* 


584;  Holland  v.  Alcock,  108  Id.  336; 
Tilden  v.  Green,  130  Id.  29  (but  see 
as  to  the  effect  of  the  statute  of  1893, 
Allen  V.  Stevens,  161  N.  Y.  122); 
Bowman  v.  Missionary  Society,  182 
N.  Y.  494;  Pringle  v.  Dorsey,  3  S.  C. 
(n.  s.)  509.  See,  also,  Beekman  v. 
Bonsor,  23  N.  Y.  308;  Fosdick  v. 
Hempstead,  125  Id.  581;  Mong  v. 
Roush,  29  W.  Va.  119;  In  re  H^offen's 
Est.,  70  Wis.  522.  (See,  however,  as 
to  this  last  case,  Harrington  v.  Pier, 
105  Wis.  485,  and  Hood  v.  Dorer,  107 
Id.  149);  Shanahan  v.  Kelly,  88  Minn. 
202;  Watkins  v.  Bigelow,  93  Minn. 
210. 

1  Burr  V.  Smith,  7  Vt.  287;  Brown 
V.  Concord,  33  N.  H.  296;  Jackson 
V.  Phillips,  14  Allen,  570;  Derby  v. 
Derby,  4  R.  I.  439;  Howard  v.  Amer- 
ican Peace  Soc,  49  Me.  302;  Darcy 
V.  Kelly,  153  Mass.  433. 

2  Academy  v.  Clemens,  50  Mo.  167. 
See,  however,  Hadley  v.  Farsee,  203 
Mo.  418;  Oilman  v.  Hamilton,  16  111. 
231 ;  Hunt  v.  Fowler,  121  Id.  269. 

3  Thomson's  Ex'rs  v.  Norris,  20 
N.  J.  Eq.  522.    The  point,  however, 


was  not  before  the  court  for  decision 
in  this  case.  See,  also,  Att.-Gen.  v. 
Moore's  Ex'rs,  19  Id.  503.  In  Mac- 
Kenzie  v.  Trustees,  67  N.  J.  Eq.  675, 
it  was  said  at  p.  676,  "The  judicial 
doctrine  of  cy  pres  as  pruned  and 
restrained  by  modem  authorities, 
English  and  American  and  as  af- 
fected by  our  own  decisions,  has  a 
proper  place  in  our  jurisprudence." 

A  testatrix  bequeathed  the  residue 
of  her  estate,  after  paying  her  debts 
and  certain  legacies,  to  "the  hospital 
fund  for  sick  seamen,  at  Na-vy  Yard, 
Brooklyn,    New    York,    care    of   W, 
chaplain."     W  was  not  chaplain  of 
the  Navy  Yard  and  died  before  testa- 
trix and  there  was  no  fund  for  the 
benefit  of  such  seamen.     Held  that 
the  cy  pres  doctrine  did   not  apply 
and  that  the  bequest  lapsed.     Brown 
V.  Condit,  70  N.  J.  Eq.  440;  Nichols 
V.  Newark  Ho.spital,  71  N.  J.  Eq.  130, 
cy  pres  doctrine  applied. 

*See  Vidal  v.  Girard's  Ex'rs,  2 
How.  128;  Perin  v.  Carey,  24  Id.  465; 
Hadley  v.  Hopkins  Academy,  14 
Pick.  240;  Going  v.  Emery,   16  Id. 


208 


TRUSTS    FOR   CHARITIES. 


[part  I. 


1151.  Nature  of  the  uncertainty  which  should  avoid  a  char- 
itable ffift. 

^\  hilc,  however,  the  reasonable  cy  pres  doctrine  may  be  sus- 
tained, it  is,  nevertheless,  true  that  many  bequests  for  chari- 
table purposes  are,  even  in  England,  considered  void  by  reason 
of  imcertainty;'  although  it  is  submitted  that  when  properly 
considered,  the  uncertainty  which  avoids  the  gift  is  not  so  much 
a  vagueness  in  the  charitable  purpose,  as  an  uncertainty  whether 
the  trustees  are  bound  to  apply  the  gift  in  charity  at  all.'  Thus, 
in  Ellis  V.  Sclby,'  the  gift  was  to  trustees  "to  pay  and  apply  the 
fund  to  and  for  such  charitable  or  other  purposes  as  they  should 


107;  Treat's  Appeal,  30  Conn.  113; 
Witnian  v.  Lex,  17  S.  &  R.  88;  Zane's 
Will.  Brightly,  350;  Pickering?'.  Shot- 
well,  10  Pa.  27;  Williams  r.  Pearson, 
38  Ala.  30.5;  McCord  v.  Ochiltree,  8 
RIackf.  15;  Beall  v.  Vox,  4  Ga.  404; 
\^•ade  V.  Am.  Col.  Soc,  7  S.  &  M. 
()(33;  Dickson  v.  Montgomery,  1  Swan 
(Tenn.),  348;  I'rmey's  Ex'rs  v. 
Wooden,  1  Ohio  St,  160;  Johnson  v. 
■'ayne,4  la.  180;  Miller  t'.  Chittenden, 
!  2.52;  Preacher's  Aid  Soc.  v.  Rich, 
;  .\le.  5.52;  Trustees  v.  Chambers,  3 
)oii.  Eq.  253;  Potter  v.  Thornton,  7 
K.  I.  252;  Meeting  Street  Baptist  Soc. 
V.  Hail,  8  Id.  239;  St.  Peter's  Church  v. 
Brown,  21  Id.  367;  Walker  v.  Walker, 
25  (la.  420;  Church  v.  Church,  18  B. 
Mon.  635  (.see  Rev.  Stats,  of  Ken- 
tucky, 1860,  c.  1,  §  1);  Chambers  v. 
St.  Louis,  29  Mo.  543;  Paschal  v. 
Acklin,  27  Tex.  173.  There  must  be 
a  general  charitable  intention;  when 
it  is  impossible  to  determine  whether 
the  work  or  th(>  institution  was  the 
more  prominent  object  and  the  in- 
stitution is  not  in  existence  the 
legacy  will  lap.se.  Cladding  v. 
Church,  25  R.  I.  628. 

'  Or  because  it  is  impossible  to  com- 
pel the  trustees  to  execute  the  gift, 
and  it  is  out  of  the  question,  without 
such  concurrence,  to  execute  such 
gift  at  all.  New  r.  Bonaker,  L.  R.  4 
Eq.  655.  In  this  case  there  was  a 
bequest  to  the  President  and  Vice- 


President  of  the  United  States  and 
the  Governor  of  Pennsylvania,  upon 
trust  to  build  and  endow  a  college  for 
the  instruction  of  youth  in  the  state 
of  Pennsylvania;  and  the  testator  di- 
rected that  moral  philosophy  should 
be  taught  in  the  college,  and  that  a 
professor  should  be  engaged  to  in- 
culcate and  advocate  the  natural 
rights  of  black  people,  of  every  clime 
and  countrj^,  until  they  should  be 
restored  to  an  equality  of  rights  with 
their  white  brethren  throughout  the 
Union.  The  trustees  having  dis- 
claimed, the  court  held  that  as  they 
had  no  power  to  enforce  the  trust, 
they  could  not  settle  a  charity  cy  prcn. 

2  A  clause  in  a  will  providing  that 
after  the  death  of  the  testator's  wife, 
"all  the  rest  and  residue  of  my  estate 
I  direct  shall  be  used  for  charitable 
and  religious  purposes,  my  said  wife 
to  direct  in  her  lifetime,  in  what 
amounts  and  for  w'hat  specific  pur- 
poses said  estate  shall  be  used"  is  not 
void  for  uncertainty  of  the  objects 
of  the  trust,  since  the  wife  has  power 
to  make  such  objects  certain.  Welch 
r.  Caldwell,  226  111.  488. 

3  7  Sim.  352;  1  M.  &  Cr.  286;  Thom- 
son V.  Shakespeare,  1  Johns.  Ch. 
(Eng.)  612;  In  re  Macduff,  Macduff 
7'.  Macduff  [1896],  2  Ch.  461.  See, 
however,  Dolan  v.  MacDermot,  3  Ch. 
App.  676. 


CH.  v.] 


TRUSTS    FOR   CHARITIES. 


209 


think  fit;"  and  it  was  held  that  the  gift  was  void,  because, 
from  the  alternative  nature  of  the  bequest,  it  was  not  incumbent 
upon  the  trustees  to  apply  the  fund  to  charitable  uses  only. 
The  same  rule  was  applied  in  a  comparatively  recent  case  in 
the  House  of  Lords,  where  a  gift  by  will,  for  ''such  chari- 
table or  public  purposes  as  my  trustee  thinks  proper"  was  held 
void  for  the  same  reason.^  And  although  in  several  other  cases 
in  which  this  rule  has  been  applied,  the  alternative  nature  of 
the  gift  has  not  been  so  apparent,^  yet  it  is  conceived  that  the 
true  test  to  be  applied  is  that  suggested  by  Sir  William  Grant, 
in  Morice  v.  The  Bishop  of  Durham,  viz.,  whether  the  property 
can  consistently  with  the  will  be  applied  to  other  than  chari- 
table purposes;  if  it  can,  the  trust  is  too  indefinite.^  Such  was 
the  test  recognized  in  Michigan,  in  The  Attorney-General  v. 
Soule,"*  where  the  rule  laid  down  by  Sir  William  Grant  was  ex- 
pressly followed. 

But  if  the  general  charitable  nature  of  the  trust  is  impera- 
tive, and  a  trustee  has  been  appointed,  the  better  opinion  would 
seem  to  be  that  such  a  trust  will  be  carried  out  by  the  court 
in  spite  of  the  vagueness  or  uncertainty  in  the  gift.^    A  differ- 


1  Blair  v.  Duncan  [1902],  A.  C. 
p.  37.  See,  also,  Hunter  v.  Attor- 
ney General  [1899],  A.  C.  309.  See, 
however,  McLaughlin  v.  Att.-Gen. 
[1906],  2  Ch.  184. 

2  Williams  v.  Kershaw,  5  CI.  &  Fin. 
Ill;  Morice  v.  The  Bishop  of  Durham , 
9  Ves.  404;  Thomson's  Ex'rs  v.  Nor- 
ris,  20  N.  J.  Eq.  489;  Coleman  v. 
O'Leary's  Ex'r,  114  Ky.  388;  Thomp- 
son V.  Brown,  116  Ky.  102. 

3  9  Ves.  404.  See,  also,  Rotch  v. 
Emerson,  105  Mass.  431;  Tilden  v. 
Green,  130  N.  Y.  29;  Darcy  v. 
Kelley,  153  Mass.  433. 

*28  Mich.  153-156.  See,  also, 
Johnson  v.  Johnson,  92  Tenn.  559. 

5  Saltonstall  v.  Sanders,  11  Allen, 
462;  McLain  v.  School  Directors,  51 
Pa.  199;  Appeal  of  Children's  Hospi- 
tal, 10  W.  N.  C.  313;  Kinike's  Estate, 
155  Pa.  101;  Atwater  v.  Russell,  49 
Minn.  57;  Sappington  v.  School  Fund 
Trustees,  123  Mo.  32;  Hadden  v. 
Dandy,  51  N.  J.  Eq.  154;  St.  James 

14 


Orphan  Asylum  v.  Shelby,  60  Neb. 
796;  In  re  Stewart's  Estate,  26  Wash. 
.32;  Perry  on  Trusts,  §  712.  See,  how- 
ever, Holland  v.  Alcock,  108  N.  Y. 
312;  Tilden  v.  Green,  130  Id.  29,  and 
Murphy's  Estate,  184  Pa.  310;  God- 
frey V.  Hutchins,  28  R.  I.  517. 

A  testatrix  by  will  expressed  her 
desire  to  devote  the  greater  portion 
of  her  estate  to  charitable  purposes, 
and  vested  the  legal  title  in  certain 
trustees,  giving  general  directions  as 
to  the  character  of  the  trust  prop- 
erty, designating  the  name  for  the 
fund  and  further  providing  "what- 
ever balance  there  shall  remain  of 
said  annual  income  unexpended,  said 
trustees  are  hereby  authorized  and 
directed  to  give  to  such  charitable 
purposes  as  they  and  their  successors 
in  office  shall  judge  will  do  the  most 
real  good,  giving  preference  to  sev- 
eral different  objects  instead  of  a 
few."  Held  that  the  intention  to 
create  a  charitable  trust  was  clear 


210 


TRUSTS   FOR  CHARITIES. 


[part  I. 


ent  rule,  however,  was  laid  down  in  New  York.  The  subject 
in  hand  was  examined  by  the  Court  of  Appeals  of  that  state, 
in  1891,  in  construing  the  will  of  Samuel  J.  Tilden,  and  the 
conclusion  reached  was  thus  expressed:  "As  the  selection  of 
the  objects  of  the  trust  was  delegated  absolutely  to  the  trus- 
tees, there  is  no  person  or  corporation  who  could  demand  any 
part  of  the  estate  or  maintain  an  action  to  compel  the  trustees 
to  execute  the  power  in  their  favor.  This  is  the  fatal  defect  in 
the  will.  The  will  of  the  trustees  is  made  controlling  and  not 
the  will  of  the  testator."  ^  It  nmst  be  remembered,  however, 
that  it  was  decided  in  Fontain  v.  Ravenel,^  that  when  a  discre- 
tion as  to  the  application  of  the  fund  to  charitable  purposes  had 
been  vested  in  executors,  and  those  executors  died  during  the 
pendency  of  a  prior  life-estate,  the  court  would  not  exercise  the 
discretion,  and  the  gift  would  fail.  And  this  mle  seems  to  be 
approved  in  Pennsylvania.^ 

In  Sherman  v.  Congregational  Missionary  Society  ^  there  was 
a  gift  to  "W.  C.  T.  U."  (which  initials  were  conceded  to  mean 
Women's  Christian  Temperance  Union)  or  Rest  Home  in  Chico- 
pee  Street.  It  was  held  that  as  there  was  a  clear  intent  to  de- 
vote the  fund  to  charity,  the  gift  should  be  divided  between  the 
two  institutions.  But  as  to  this  decision  it  may  be  remarked 
that  the  uncertainty  of  particular  beneficiaries  in  a  given  class 
will  not,  according  to  what  (it  is  conceived)  is  the  true  doctrine, 
render  the  gift  void ;  but  that  an  uncertainty  as  to  which  of  two 
classes  of  beneficiaries  the  gift  is  to  be  applied  would  appear  to 
be  open  to  the  same  argument  against  its  validity  because  of  un- 
certainty as  a  bequest  to  either  of  two  individuals  (say)  A  or  B. 


and  the  gift  was  sufficiently  definite 
for  judicial  cognizance.  Selleck  v. 
Thompson,  28  R.  I.  350. 

1  Tilden  v.  (^.rocn.  130  N.  Y.  29.  A 
similar  ruling  had  been  made  a  few 
years  previously  in  Holland  v.  Alcock, 
108  Id.  312.  See,  also,  Gambell  v. 
Trippe,  75  Md.  252,  and  People  v. 
Powers,  147  N.  Y.  104.  See,  in  this 
connection,  .\llen  v.  Stevens,  161 
N.  Y.  122,  and  Keith  v.  Scales,  124 
N.  C.  497.  In  this  last  ca.se  the  dif- 
ference between  the  Tilden  Will  Case 
and  Vidai  v.  Girard's  Ex'rs,  is  pointed 
out. 


2  17  How.  369. 

3  Zeisweiss  v.  James,  63  Pa.  465. 
Testatrix  directed  her  executors  in 

default  of  written  directions  by  her, 
to  distribute  a  fund  "among  such 
religious  charitable  and  benevolent 
purposes  and  objects  or  institutions 
as  in  their  discretion  shall  be  best  and 
proper."  Held,  that  a  valid  trust 
was  created.  Dulles's  Estate,  218 
Pa.  162. 

*  176  Mass.  349.  The  gift  of  the 
real  estate  in  the  same  will,  would 
seem  to  be  governed  by  other  rules. 


CH.  v.]  TRUSTS   FOR  CHARITIES.  211 

132.  Resulting  trusts  in  cases  of  cliari table  gifts. 

It  sometimes  happens  that  the  particular  charitable  pur- 
poses specified  or  supposed  to  be  contemplated  by  the  testator 
do  not  exhaust  the  whole  of  the  income  of  the  property  devoted 
by  the  will  to  charity.  The  general  rule  may  be  stated  to  be 
that  if  an  intention  can  be  gathered  from  the  will  to  devote 
the  whole  to  charity,  the  circumstance  that  the  specific  appro- 
priation covers  only  a  certain  part,  or  that  the  estate  afterwards 
becomes  of  a  value  more  than  sufficient  to  satisfy  the  require- 
ments of  the  gift,  will  not  create  a  resulting  trust  pro  tantn  for 
the  heir  or  the  next  of  kin,  but  that  the  sur|)lus  also  will  be 
devoted  to  the  charitable  purpose.  This  doctrine  has  existed 
since  the  time  of  Lord  Coke,  and  is  generally  referred  to  as  the 
rule  in  the  Thetford  School  Case.^  In  that  case  the  testator, 
having  land  let  at  a  rent  of  £35  a  year,  bequeathed  a  sum  of 
£35  a  year  "to  the  charitable  uses  hereinafter  mentioned,  that 
is  to  say,"  and  then  he  said  to  the  school-master  so  much,  to 
the  usher  so  much,  proportions  of  the  whole.  In  the  process 
of  time,  the  rents  increased  to  a  greater  yearly  value  than  £35, 
and  it  was  decided  that  the  surplus  also  was  to  be  appropriated 
to  the  charity.^  However,  if  the  testator,  by  the  terms  of  the 
bequest  takes  notice  of  the  fact  that  the  payments  are  less  than 
the  amount  of  the  rents,  there  will  be  either  a  resulting  tmst, 
or  the  surplus  will  belong  to  the  person  to  whom  the  estate  is 
given,  and  by  whom  the  payments  are  to  be  made.^ 

In  this  class  of  cases,  however,  it  is  difficult,  and  perhaps  im- 
possible, to  lay  down  any  general  rule.  The  decision  in  each 
case  must  depend  upon  the  instrument  to  be  construed  and  the 
facts.'' 

133.  Perpetuities  and  accumulations. 

Another  characteristic  of  a  charitable  use  which  demands 
attention  is  that  it  is  not  subj(»ct  to  the  ordinary  rules  in  re- 
gard to  perpetuities.  Ordinarily,  a  perpetuity  will  no  more 
be  tolerated  when  it  is  covered  with  a  trust  than  when  it  dis- 
plays itself  undisguised  in  a  settlement  of  the  legal  estate, "*  and 

1  8  Rep.  130,  b.  L.  R.  8  Eq.  452;  2  Redfield  on  Wills, 

2  See,   also,   Mayor  of   Beverly  v.       796. 

Att.-Gen.,   6   H.   L.   Cas.   318;   Att.-  »  Mayor  of  Beverly  v.  Att.-Gen.,  6 

Gen.  V.  Dean  of  Windsor,  8  Id.  369;  H.  L.  Cas.  310;  Hill  on  Trustees,  129. 

Girard    v.    Philadelphia,   7   Wall.    1;  *  Perry  on  Trusts,  §  72.5. 

Att.-Gen.  v.    Wax    Chandlers'    Co.,  ^\  Lewin  on  Trusts,  *97;  Duke  of 


212  TRUSTS   FOR   CHARITIES.  [PART   I. 

therefore  a  perpetual  trust  cannot  be  created  for  an  individual 
and  his  heirs  in  succession,  forever.^  But  when  the  trust  is  for 
a  charity,  it  is  no  objection  to  it  that  the  property  may  remain 
in  the  hands  of  the  trustees  and  their  successors  for  all  time.^ 
Indeed,  it  is  often  one  of  the  main  objects  of  a  gift  to  charity 
that  the  charitable  use  of  the  property  should  be  perpetual;  and, 
moreover,  it  must  be  remembered  that,  from  this  devotion  to 
charitable  uses,  it  does  not  necessarily  follow  that  the  property 
is  never  to  be  alienated,  for  the  court  can  decree  the  sale  of  any 
trust  property  when  the  exigency  of  the  case  arises.^  In  Mary- 
land, however,  it  is  held  that  the  rule  against  perpetuities  applies 
to  trusts  for  charitable  or  religious  uses,  as  well  as  to  a  tmst  for 
any  other  purpose  ;"*  and  in  New  York,  also,  trusts  for  charities, 
under  the  peculiar  law  of  that  state,  have  been  held  to  be  sub- 
ject to  the  rules  against  perpetuities  in  the  same  way  as  ordinary 
trusts.^  But  in  a  later  New  York  case  the  court  held  that  un- 
der the  Act  of  1893,  trusts  for  charities  are  not  so  subject.® 

The  rule  against  perpetuities,  however,  does  apply  to  a  grant 
or  devise  to  a  charity  after  one  to  a  private  person,  as  well  as 
to  a  grant  or  devise  to  a  private  person,  although  limited  over 
after  an  immediate  gift  to  a  charity.  But  where  there  is  no 
limitation  over,  and  the  charitable  gift  fails,  the  rule  will  not 
prevent  the  heir  from  taking  by  a  resulting  trust. ^ 

In  general,  trusts  for  accumulation  beyond  the  period  allowed 
by  the  common  law,  i.  e.,  a  life  or  lives  in  being  and  twenty-one 
years  afterwards,  are  void;*  but  in  the  case  of  trusts  for  chari- 

Norfolk's  Case,  3  Ch.  Cas.  20;  Perry  Church's  Petition,  139  Pa.  67;  Mills 

on  Trusts,  §  33.  v.  Davison,  54  N.  J.  Eq.  659  (a  case 

1  Thellusson  v.  Woodford,  4  Ves.  of  restraint  on  aUenation),  and  Asy- 
227;  11  Id.  112.  him  v.  Lefebre,  69  N.  H.  238,  a  case  of 

2  Perin  v.  Carey,  24  How.  495;  hke  restraint.  See,  also,  Lackland 
Duggan  V.  Slocum,  34  C.  C.  A.  676;  v.  Walker,  151  Mo.  210,  and  Women's 
Jones  V.  Watford,  62  N.  J.  Eq.  339;  Chris.  Ass'n  v.  Kansas  City,  147  Id. 
Yard's  Appeal,  63  Pa.  99;  Andrews  v.  103. 

Andrews,    110    111.    223;    Staines    v.  *  Missionary  Society  v.  Humphreys, 

Burton,    17    T'tah,    331;    Asylum   v.  91  Md.  131. 

Lefebre,  69   N.    H.   238.     See  In  re  5  Levy  v.  Levy,  33  N.  Y.  97;  Bas- 

Dean,  41  Ch.  D.  552,  where  the  gift  com  v.  Albertson,  34  Id.  584;  Tilden  v. 

was  to  take   care  of  certain  horses.  Green,  130  Id.  29;  Booth  v.  Baptist 

ponies  and  hounds  for  their  lives.  Church,  126  Id.  215. 

^  Perry  on  Trusts,  §  737;  Id.  §  24,  "  Allen  r.  Stevens,  161  N.  Y.  122. 

and   cases   cited   in   note;    Brown    ?'  ''Hopkins  v.  Grimshaw,  165  U.  S. 

Meeting  St.  Bapt.  Soc,  9  R.  I.  177;  355. 

Barr    v.    Weld,    24    Pa.    84;    Sellers  »  Perry  on  Trusts,  §§  393,  394. 


CH.  v.] 


TRUSTS   FOR   CHARITIES. 


213 


ties,  where  there  are  no  statutory  regulations  upon  the  subject 
trusts  for  accumulation  beyond  the  common-law  period  are  al- 
lowed.^ 

If,  however,  the  charitable  trust  is  not  to  vest  until  after  the 
determination  of  a  prior  gift,  and  that  prior  gift  may  by  possi- 
bility last  longer  than  the  time  allowed  by  law,  the  gift  over  to 
charity  will  be  void,  because  of  the  perpetuity  in  the  first  taker. ^ 
Of  course,  this  rule  would  not  apply  when  the  first  gift  is  to  a 
charity.^ 

134.  Statutes  of  mortmain. 

In  England  a  conveyance  or  devise  of  real  estate  in  trust 
for  a  charitable  or  public  institution,  being  a  corporation,  is  in- 
operative by  the  statute  of  mortmain  unless  sanctioned  by  a  li- 
cense from  the  crown.''  These  statutes,  however,  are  not  in  force 
and  have  not  been  adopted  in  the  United  States,  and  the  Eng- 
lish decisions  upon  this  subject  are  therefore  of  no  importance 
in  this  country.^ 


1  See  Odell  v.  Odell,  10  Allen,  1;  St. 
Paul's  Ch.  V.  Att.-Gen.,  164  Mass. 
188;  Woodruff  v.  Marsh,  63  Conn. 
125;  Crerar  v.  Williams.  145  111.  625; 
City  of  Philadelphia  v.  Girard's  Heirs, 
45  Pa.  9.  This  last  case  is  distin- 
guished from  the  case  of  Hillyard  v. 
Miller,  10  Id.  326;  Perry  on  Trusts, 
§  738;  Codman  v.  Brigham,  187 
Mass.  309. 

2  Hillyard  v.  Miller,  10  Pa.  335; 
City  of  Philadelphia  v.  Girard's  Heirs, 
45  Id.  29;  Perry  on  Trusts,  §  736. 

3Lennig's  Estate,  154  Pa.  209; 
Christ's  Hospital  v.  Grainger,  16  Sim. 


83;  1  MacN.  &  G.  460;  McDonogh's 
Ex'rs  V.  Murdoch,  15  How.  415; 
Potter  V.  Thornton,  7  R.  I.  252; 
Perry  on  Trusts,  §  736;  Storrs  Agr. 
School  V.  Whitney,  54  Conn.  342; 
Almy  V.  Jones,  17  R.  I.  265. 

*  Hill  on  Trustees,  455. 

5  2  Kent's  Com.  282.  In  Pennsyl- 
vania the  statutes  of  mortmain  were 
reported  to  be  in  force  by  the  judges; 
see  3  Binney,  App.  626;  but  a  con- 
trary opinion  has  been  subsequently 
expressed.  Magill  v.  Brown,  Brightly, 
350;  Vidal  v.  Girard's  Ex'rs,  2  How. 
128. 


214 


trustees;  their  powers  and  duties.       [part  1. 


CHAPTER  VI. 


trustees;  their  powers  and  duties. 


135.  Jurisdiction  of  Courts  of  Equity 

over  trustees. 

136.  Who  may  be  a  trustee;  corpora- 

tions. 

137.  Acceptance  of  the  trust. 

138.  General  duties  of  trustees. 

139.  Conversion     of    securities;     de- 

posits. 

140.  Investments  by  trustees;  Eng- 

lish rule. 

141.  Rules  in  the  United  States. 

142.  When    trustees   are    chargeable 

with  interest. 


143.  Trustee  cannot  use  his  position 

for  his  own  advantage. 

144.  Compensation   of  trustees;   dif- 

ference between  English  rule 
and  that  in  most  of  the  United 
States. 

145.  Trustee  cannot  delegate  his  au- 

thority. 

146.  Responsibility    for   acts   of   co- 

trustee. 

147.  Remedies  for  breach  of  trust. 

148.  Trustees'  Accounts. 


135.  Jurisdiction  of  Courts  of  Equity  over  trustees. 

The  general  nature  of  a  trust  having  been  explained,  and 
the  different  modes  in  which  the  relationship  of  trustee  and 
cestui  que  trust  may  arise  having  been  pointed  out,  it  will  be 
proper  now  to  proceed  to  a  brief  consideration  of  some  of  the 
rules  by  which  the  conduct  of  the  holder  of  the  legal  title  is 
governed,  and  by  which  his  relations  with  co-trustees,  with 
strangers,  and  with  the  cestui  que  trust  are  regulated.  The  pro- 
mulgation and  enforcement  of  these  rules  fall  necessarily  and 
properly  within  the  juiisdiction  of  courts  of  equity,  for  it  is  but 
reasonable  that  those  courts,  after  having  called  the  equitable 
title  into  existence,  should  continue  to  exercise  over  it  a  con- 
stant care  and  supervision.^  Equity  affords  this  protection  by 
appointing  and  removing  trustees,  by  superintending  their  dis- 
charge of  the  duties  of  the  tmst,  by  regulating  their  liability,  by 
filling  a  vacancy  or  vacancies  in  the  office  of  trustee,  and,  finally, 
by  affording  the  trustees,  upon  a  proper  application  and  upon 
proper  cause  shown,  the  advice  and  assistance  of  the  court. 

Moreover,  if  a  trustee  wishes  to  be  relieved  of  the  duties  of 


1  See  Dorsey  v.  Garey,  30  Md.  489,  495, 


CH.  VI.] 


trustees;   THKtH    POWERS    AND    DUTIES, 


215 


his  office,  he  must,  as  a  general  rule,  apply  to  a  court  of  equity 
to  be  discharged.  He  cannot  discharge  himself  of  his  trust  with- 
out the  assent  of  the  cestui  que  trust  or  the  direction  of  a  Court 
of  Chancery.^ 

The  manner  in  which  courts  of  ecjuity  interfere  for  these  pur- 
poses depends,  at  the  present  day,  very  nmch  upon  statutory 
regulations;  and  the  liabilities  and  duties  of  trustees  are  also, 
in  very  many  instances,  governed  by  statutes,  the  details  of 
which  in  the  different  states,  and  in  England,  it  would  be  quite 
impossible,  in  a  treatise  like  the  present,  to  explain.  Nor  is  it 
possible  to  enter  into  a  discussion  of  all  the  different  duties 
which  trustees  are  called  upon  to  discharge,  for  they  necessarily 
vary  with  the  varied  ])urposes  for  which  trusts  are  created. 
They  have  been  most  elaborately  examined  in  modern  times  in 
works  devoted  expressly  to  the  subject.  It  is  desirable,  how- 
ever, before  leaving  the  consideration  of  the  subject  of  trusts, 
that  some  of  the  more  general  (juestions  connected  with  the 
jurisdiction  of  chancery  over  trustees  should  be  noticed. 

136.  Who  may  be  a  trustee  ;  corporations. 

Any  reasonable  being  may  ha  a  trustee;-  and  a  corporation, 
though  it  has  but  an  artificial  existence,  may  be  a  trustee  for 
purposes  germane  to  the  objects  of  its  corporate  life.^     The 


1  Shepherd  v.  McEvers,  4  Johns. 
Ch.  136;  Damon  v.  Hyde,  11  Hawaii, 
153. 

2  Infants,  married  women,  and 
bankrupts  may  be  trustees.  See 
Perry,  §§  48  e<  .seq.;  Curran  v.  Green, 
18  R.  I.  329.  "  But  it  does  not  follow 
that  whoever  is  capable  of  taking  a 
trust  is  capable  of  performing  or 
executing  it.  The  inquiry,  then,  is 
not  so  much  who  may  take  in  trust 
as  who  may  execute  and  perforin  a 
trust."  Perry,  §  39;  In  re  Tem- 
pest, L.  R.  1  Ch.  487.  See  Lewin 
(10th  Eng.  ed.),  36.  While  a  cestui 
que  trust  may  be  invested  with  the 
powers  of  and  permitted  or  required 
to  act  as  a  trustee  yet  his  interest  as 
cestui  que  trust,  especially  when  it  is 
for  life  only,  being  at  variance  with 
his  duty  as  trustee,  courts  will  not 
adopt   a   construction    of   a   will    in- 


volving such  conflict  of  interest  un- 
less the  testator's  intent  to  accom- 
plish such  result  is  clear.  Vreeland's 
Est.,  66  N.  J.  Eq.  297.  A  deed  or 
will  does  not  create  a  trust  imless 
there  is  a  separation  of  the  legal  es- 
tate from  the  beneficial  enjoyment 
and  a  trust  cannot  exist  when  the 
same  person  possesses  both.  Doan  r. 
Vestry,  103  Md.  662. 

•*  Vidal  V.  (iirard's  Ex'rs,  2  How. 
188,  190;  C.irard  v.  Philadelphia,  7 
Wall.  1;  McDonogh's  Ex'rs  v.  Mur- 
doch, 15  How.  367;  Philadelphia  r. 
Fox,  64  Pa.  169;  Mayor  of  Phila.  v. 
Elliott,  3  Rawle,  170;  Cresson's  Ap- 
peal, 30  Pa.  447;  Commissioners  v 
Walker,  6  How.  (Miss.)  184.  In  this 
connection  reference  may  be  made  to 
the  case  of  Franklin's  Estate,  150  Pa. 
437.  But  the  soundness  of  this  de- 
cision may  be  doubted.     Incapacity 


216 


trustees;  their  powers  and  duties.       [part  I. 


United  States,  and  each  one  of  the  separate  states,  may  sustain 
the  character  of  trustees.^  The  only  difficulty  in  such  cases  is 
the  same  as  that  which  existed  in  England  when  the  king  was 
trustee,  viz.,  in  enforcing  a  decree  of  a  court  against  the  sover- 
eign power.-  Gifts  to  unincorporated  societies  in  tmst  for  char- 
itable purposes  have  been  sustained  in  equity,  although  the  de- 
cisions on  this  point  have  not  been  uniform.^  If  a  valid  tmst 
has  been  created,  and  no  tmstee  has  been  appointed,  or  a  trus- 
tee has  been  appointed  who  is  incompetent  to  act,  equity  will 
appoint  a  trustee;  for  it  is  a  cardinal  maxim  in  Courts  of  Chan- 
cery upon  this  subject  that  a  trust  shall  never  be  suffered  to 
fail  for  want  of  a  trustee."*  Thus,  if  a  corporation  should  be  des- 
ignated as  a  trustee,  and  the  objects  of  the  trust  should  be  such 
that  the  corporation,  from  its  very  nature,  would  be  incapable 
of  carrying  them  out,  a  Court  of  Chancery  will  appoint  a  tms- 
tee who  will  be  able  to  discharge  the  duties  of  the  tmst.^ 

137.  Acceptance  of  the  trust. 

In  cases  of  express  trusts  it  is  necessary  that  the  tmst  should 


to  act  as  a  trustee  under  an  express 
trust  would  not  seem  to  relieve  the 
holder  of  a  legal  title  from  the  duty 
of  conveying  it  to  the  equitable 
owner;  and  this  is  all  that  a  trustee 
under  a  resulting  or  constructive 
trust  would  be  required  to  do.  See, 
as  relevant  to  this  point,  Frazier  v. 
St.  Luke's  Ch.,  147  Pa.  256;  Clayton 
V.  Hallett,  30  Colo.  231. 

1  McDonogh's  Ex'rs  v.  Murdoch,  15 
How.  367;  Case  of  the  Smithsonian 
Institution,  cited  in  Whicker  v. 
Hume,  7  H.  L.  Cas.  141;  U.  S.  Stats., 
vol.  v..  p.  64,  IX.,  p.  102;  Mitford  v. 
Reynolds,  1  Phil.  185;  Nightingale  v. 
Goulbuorn,  2  Id.  594;  5  Hare,  484. 
It  was  deemed  that  the  United  States 
could  be  trustee  in  Levy  v.  Levy,  33 
N.  Y.  97;  Shoemaker  v.  Com'rs,  36 
Ind.  176. 

2  See  New  v.  Bonaker,  L.  R.  4  Eq. 
655;  Hill  on  Trustees,  50;  Perry  on 
Trusts.  §§  40,  41.    Ante,  §  52. 

^  \'ida!  V.  Girard's  Ex'rs,  2  How. 
127;   Hurbank  v.  Whitney,  24  Pick. 


146;  Magill  v.  Brown,  Brightly,  350; 
Pickering  v.  Shotwell,  10  Pa.  27; 
Cone  ('.  Cone,  61  S.  C.  512;  though 
see  Baptist  Assoc,  v.  Hart's  Ex'rs,  4 
Wheat.  1 ;  Weaver  v.  Spurr,  56  W.  Va. 
95,  and  St.  Peter's  Church  v.  Brown, 
21  R.  I.  367;  Perry  on  Trusts,  §  46. 

i  Perry  on  Trusts,  §  38;  Woodruff 
V.  Woodruff,  44  N.  J.  Eq.  349;  Skin- 
ner V.  Harrison  Twp.,  116  Ind.  139; 
Seda  V.  Huble,  75  la.  429;  Grant  v. 
Saunders,  121  la.  80;  Childs  v.  Waite, 
102  Me.  451;  Wood  v.  Church,  26 
R.  I.  594;  Dwyer  v.  Cahill,  228  111. 
617. 

5  Vidal  V.  Girard's  Ex'rs  (svpra); 
Sonley  v.  Clockmakers'  Co.,  1  Bro. 
Ch.  81;  Mormon  Church  Case,  136 
U.  S.  1;  Matter  of  Griffin,  167  N.  Y. 
71;  Perry  on  Trusts,  §  45.  Or  where 
the  trustees  appointed  have  cease  I 
to  e.xist  (in  this  case  selectmen  of  the 
city  of  Boston)  the  court  will  appoint 
other  tru.stees  from  the  class  of  cit- 
izens indicated  by  the  will.  Boston 
r.  Doyle,  184  Mass.  373. 


CH.  VI.]        trustees;  their  powers  and  duties.  217 

be  accepted  by  the  trustee,  either  expressly  or  impliedly;  and 
whether  there  has  been  such  an  acceptance  is  a  question  of  fact 
of  a  kind  proper  for  the  determination  of  a  jury.^  The  best 
and  most  effectual  method  of  accepting  a  trust  is  by  signing 
the  trust  deed;  but  an  acceptance  may  be  ecjually  inferred 
from  any  acts  of  the  trustee  in  and  about  the  execution  of  the 
trust.'  If  it  is  desired  not  to  accept  the  trust,  great  care  should 
be  exercised  not  to  do  any  act  which  might  be  construed  into 
an  acceptance.  Even  an  instrument,  drawn  for  the  purpose 
of  disclaiming  a  trust,  has  been  construed  to  be  an  acceptance 
of  it,  because  it  was  in  the  form  of  a  conveyance,  which  was  a 
dealing  with  the  trust  estate.^ 

If  an  effectual  disclaimer  is  made,  the  legal  estate  will  not 
vest  in  the  intended  trustee* 

138.  General  duties  of  trustees. 

The  duties  of  trustees  may  be  said  in  general  terms  to  be  em- 
braced in  the  obligation  to  protect  and  preserve  the  tmst  prop- 
erty, and  to  see  that  it  is  employed  solely  for  the  benefit  of  the 
cestui  que  trust.  Thus,  tiiistees  for  the  payment  of  debts  should 
take  care  that  all  the  assets  are  ])roj)erly  got  in,  that  as  much 
as  possible  is  realized  from  them,  that  creditors  are  ascertained, 
their  claims  investigated,  and  the  funds  properly  applied  in 
the  due  payment  of  their  demands.^  Tmstees  for  sale  are  to 
see  that  a  sale  takes  place  within  a  reasonable  time,^  that  the 
property  is  disposed  of  on  the  most  advantageous  tei-ms,  that 
all  means  are  used  for  the  purpose  of  obtaining  buyers  and  se- 
curing a  fair  sale,  and  that  the  purchase-money  is  collected. 
Trustees  for  charities  must  take  care  that  the  income  is  ap])lied 
to  the  charitable  purposes  to  which  it  was  directed  by  the  in- 
strument creating  the  trust,  and  none  other,  and  that  the  wishes 
of  the  donor  are  carried  out  consistently  with  the  rules  of  law. 
In  fine,  it  would  be  impossible  to  enumerate  the  duties  which 
the  multifarious  purposes  for  which  trusts  are  created  impose 

1  Armstrong   v.    Morrill,    14   Wall.  < /n  re  Birchall,  40  Ch.  D.  436. 
139.  ^  Chambersburg  Savings  Fund  As- 

2  Perry     on    Trusts,     §  260.       See  sociation's  Appeal,  76  Pa.  293. 
Salter  v.  Salter,  80  Ga.  178.  «  See  Walker  v.  Shore,  19  Ves.  387; 

3  Crewe  v.  Dicken,  4  Ves.  97;  Urch  Hunt  v.  Bass,  2  Dev.  Eq.  297;  Morris 
V.  Walker,  3  M.  &  C.  702;  Perry  on  v.  Morris,  4  Jur.  (n.  s.)  802-964. 
Trusts,   §  271. 


218  trustees;  their  jpowers  and  duties.        [part  1. 

upon  the  trustees — for  to  do  so  would  be  to  write  a  work  not 
upon  the  general  principles  of  equity,  but  upon  trusts. 

Speaking  very  generally,  in  passing  upon  the  subject  of  the 
proper  discharge  of  his  duties  by  a  trust(>e,  it  has  been  said  that 
the  true  question  is  whether,  considei'ing  all  the  circumstances, 
he  has  displayed  such  prudence  and  diligence  in  conducting  the 
affairs  of  the  trust  as  men  of  average  prudence  and  discretion 
would  employ  in  their  own  affairs.'  Perhaps  the  truer  mle 
would  be  that  a  trustee  must  exercise  such  prudence  and  dili- 
gence as  a  careful  business  man  would  display  in  investing,  not 
his  own  money,  but  the  money  of  others.  The  fact  that  the 
money  does  not  belong  to  the  investor  must  always  be  an  ele- 
ment to  be  considered  by  the  trustee.  The  rules  of  prudence  in 
the  two  cases  differ.  In  the  case  of  his  own  money,  a  man  may 
take  a  risk  which  the  iiiles  of  prudence  would  justify.  Where 
the  money  of  another  is  at  stake,  the  rule  of  prudence  may  for- 
bid the  risk.- 

139.  Conversion  of  securities  ;  deposits. 

The  first  general  duty  of  trustees  is  to  take  possession  of  the 
trust  property,  to  call  in  debts, ^  and  to  convert  such  securities 
as  are  not  legal  investments.''  In  converting  securities  they 
must  exercise  a  sound  discretion  to  sell  in  the  most  advanta- 
geous manner  and  at  the  most  advantageous  time.^  They  ought 
not  to  suffer  trust  property  to  remain  in  securities  not  authorized 
by  law,  unless  there  is  something  in  the  instrument  creating  the 
trust  to  justify  such  a  course.^  As  personal  securities  are  not 
recognized  by  law  as  a  proper  investment,  an  executor  should 

»  Purdy  V.  Lynch,  14.5  N.  Y.  462.  Chapman  [1896],  2  Ch.  763,  as  to  the 

See,  also,    Bartol's  Estate,   182   Pa.  measure  of  time  allowed. 

410,   and    Nagle  v.   Robins,  9  Wyo-  ^  Perry  on  Trusts,  §  439. 

ming,  211.  «  And   where  discretion   as   to   in- 

2  Hart's  Estate,  203  Pa.  480,  and  vestments  is  allowed  it  must  be  hon- 
the  remarks  of  Dean,  J.,  on  pp.  48.5-  estly  exercised.  In  re  Smith,  Smith 
486.  V.  Thompson  [1896],  1  Ch.  71;  Matter 

3  See  In  re  Brogden,  38  Ch.  D.  546,  of  Hall,  164  N.  Y.  196.  A  power  to 
where  a  trustee  under  a  marriage  sell  and  reinvest  does  not  authorize 
.settlement  was  held  responsible  for  the  trustees  to  incorporate  the  estate, 
failure  to  make  diligent  efforts  to  Garesche  v.  Levering  Inv.  Co.,  146 
collect    the    sum    of    ten    thousand  Mo.  436. 

pounds   covenanted   to   be   paid   by  Where  a  deed  of  trust  gives  to  the 

the  settlor  within  five  years  after  his  trustee  the  power  to  "sell  and  convey 

death.  in   fee  .simple  the  whole  oi'  any  part 

*  See    In    re    Chapman,    Cocks    v,  of   the   trust   estate  .    .   .   provided, 


\ 


CH.  VI.] 


trustees;  their  powers  and  duties. 


219 


not  allow  the  assets  to  remain  outstanding  in  such  securities, 
although  the  loan  or  investment  had  been  made  by  the  testator 
himself.^  Of  course,  there  is  no  duty  to  convert  securities,  if  by 
the  terms  of  the  tmst  instrument  there  is  a  sufficient  indication 
that  the  cestui  que  trust  was  intended  to  enjoy  the  interest,  in- 
come, or  dividends  of  the  specific  securities.^ 

After  securities  have  been  converted,  the  funds  should  be  de- 
posited in  a  proper  place. 

A  trustee  will  not  be  liable  for  the  failure  of  a  bank  in  which 
trust  funds  have  been  deposited,  if  he  has  suffered  them  to  re- 
main there  only  for  a  reasonable  time  f  but  if  he  allows  them  to 
lie  there  by  way  of  investment,  he  will  be  liable  to  make  good 
their  loss.^  But  he  must  be  careful  to  make  the  deposit  in  the 
name  of  the  trust  estate,  and  not  to  his  own  credit;  and  not  to 
mix  trust  fimds  with  his  own,  otherwise  he  will  be  liable.^ 


140.  Investnieiits  by  trustees ;  English  rule. 

Supposing  the  trust  property  to  have  been  converted  fnto 
cash,  the  next  duty  of  the  trustee  will  be  to  see  that  the  fund  is 
invested  in  proper  securities,  and  in  such  a  way  that  it  may  be 
made  available  for  the  purposes  of  the  trust.^ 


however,  that  the  principal  of  the  es- 
tate shall  not  become  impaired  or 
encumbered,"  the  trustee  has  no 
power  to  pledge  a  mortgage  belong- 
ing to  the  estate  as  security  for  a 
loan;  and  if  he  does  so  and  em- 
bezzles the  proceeds,  the  pledgee  of 
the  mortgage  will  be  compelled  to 
reassign  it  to  the  trust  estate.  Ken- 
worthy  V.  Levi,  214  Pa.  235. 

1  Powell  V.  Evans,  5  Ves.  839; 
Greyburn  v.  Clarkson,  L.  R.  3  Ch. 
606;  Hemphill's  App.,  18  Pa.  303; 
Pray's  Appeal,  34  Id.  100  (overruling 
Barton's  Appeal,  1  Pars.  Eq.  24); 
Kimball  v.  Reding,  11  Foster,  3.52; 
King  V.  Talbot,  40  N.  Y.  76;  Perry 
on  Trusts,  §  440;  Hill  on  Trustees, 
582  (4th  Am.  ed.). 

2  Perry  on  Trusts,  §§450,  451; 
Hill  on  Trustees,  id  s^ip. 

3Rowth  V.  Howell,  3  Ves.  365; 
Swinfen  v.  Swinfen  (No.  5),  29  Beav. 
211;  Law's  Estate,  144  Pa.  499. 


*  Rehden  v.  Wesley,  29  Beav.  213; 
Moyle  V.  Moyle,  2  R.  &  M.  710;  John- 
son V.  Newton,  11  Hare,  160;  Perry 
on  Trusts,  §  443;  Matter  of  Knight, 
21  Abb.  N.  C.  388.  See  In  re  Gram- 
mel's  Est.,  120  Mich.  487. 

5  Wren  v.  Kirton,  11  Ves.  337; 
Commonwealth  v.  McAlister,  28  Pa. 
486;  Jenkins  v.  Walter,  8  G.  &  J.  218; 
Lukens's  .\ppeal,  7  W.  «fe  S.  48;  Stan- 
ley's Appeal,  8  Pa.  431 ;  Royer's  Ap- 
peal, 11  Id.  36;  De  Jariette  v.  Dp 
Jamette,  41  Ala.  709;  Perry  on 
Trusts,  §§  443,  463.  See,  also.  Frith 
V.  Cartland,  2  Hen.  &  M.  417;  Marine 
Bank  r.  Fulton  Bank,  2  Wall.  252. 
Kip  V.  The  Bank  of  New  York,  10 
Johns.  65;  Kennedy  v.  Strong,  Id 
289;  School,  etc.,  v.  Kirwin,  2.")  111. 
73;  Brown  v.  Ricketts,  4  Johns.  Ch. 
303;  Hill  on  Trustees,  575  (4th  Am. 
ed.);  Corya  v.  Corya,  119  Ind. 
593. 

«  The  trustee  cannot  supinely  allow 


220  trustees;  their  powers  and  duties.        [part  i. 

As  courts  of  equity  in  England  were  in  the  habit  of  directing 
moneys,  which  were  in  the  custody  of  the  court  to  be  invested 
in  £3  per  cent,  annuities,  it  came  to  be  considered  an  estabhshed 
duty  on  the  part  of  trustees  to  invest  trust  moneys  in  those 
funds. ^  Several  statutes,  however,  have  been  passed  by  which 
many  other  securities  have  been  designated  as  lawful  invest- 
ments for  trustees.  Thus  trustees  are  now  allowed  by  act  of 
parliament  to  invest  in  real  securities  in  any  part  of  the  United 
Kingdom,  and  Bank  of  England,  or  Bank  of  Ireland,  or  East 
India  Stock;  unless  such  investments  are  expressly  forbidden 
by  the  trust  instmment.^' 

141.  Rules  in  the  United  States. 

A  trustee  cannot  invest  the  trust  funds  in  personal  securities; 
and  even  if  he  has  a  discretion  as  to  investments,  it  is  not  a 
sound  e.xercise  of  that  discretion  to  invest  in  such  securities.^ 
This  is  the  rule  in  England  and  in  the  United  States."*  So,  also, 
for  a  tmstee,  in  the  absence  of  express  authority,  to  employ 
trust  funds  in  trade  or  speculation,  will  be  a  gross  breach  of 
tmst.^    In  England  a  trustee  must  not  invest  in  bank  stock  or 


'to'^ 


the  trust  funds  to  remain  uninvested.  elude  stocks  and   shares].    Smith  v. 

Whitecar's  Estate,  147  Pa.  36S.  Smith,  4  Johns.  Ch.  281 ;  Nyce's  Es- 

1  Smith's  Manual  of  Equity,  194.  tate,  5  W.  &  S.  256;  Swoyer's  Ap- 
See  Brown  v.  Wright,  39  Ga.  26;  peal,  5  Pa.  377;  Wills's  Appeal,  22  Id. 
King  V.  Talbot,  40  N.  Y.  76.  330;  Gray  v.  Fox,  Saxton  (Ch.),  259; 

2  22  and  23  Vict.,  c.  .35,  §30;  23  and  Harding  v.  Lamed,  4  Allen,  426; 
24  Vict.,  c.  35,  §  11 ;  Id.,  c.  145;  30  and  Clark  v.  Garfield,  8  Id.  427;  Moore  v. 
31  Vict.,  c.  132,  §  2;  Local  Loans  Act,  Hamilton,  4  Fla.  112;  Spear  v.  Spear, 
1875,  38  and  39  Vict.,  c.  83,  §  27.  9  Rich.  Eq.  184  [see,  however,  Nance 
See  Hill  on  Trustees,  560  (4th  Am.  v.  Nance,  1  S.  C.  (x.  s.)  209];  Barney 
ed.).  )•.  Saunders,  16  How.  545;  Perry  on 

3  See  Knox  v.  MacKinnon,  13  App.  Trusts,  §  453;  Dufford  v.  Smith,  46 
Cas.  753,  and  Mattocks  v.  Moulton,  84  N.  J.  Eq.  216;  AUis's  Estate,  123  Wis. 
Me.  545.  223.    If  a  trustee  is  authorized  to  in- 

*  Walker  v.  Symonds,  3  Swans.  81,  vest  in  "public  companies,"  this  does 

note  (a),   citing  Ryder  v.  Bickerton  not    mean    "foreign    public    compa- 

(where  Lord  Hardwicke  said  that  "a  nies;"   for   it   is   impossible   for   the 

promissory  note  is  evidence  of  a  debt,  court  to  tell  what  are  public  com- 

but  not   security   for  it ") ;   Adye   v.  panics  according  to  foreign  law.     In 

Feuilleteau,    1    Cox,    25;   Holmes   v.  re  Castlehow  [1903],  1  Ch.  352. 
Dring,  2  Id.  1  [see  In  re  RajTier,  Ray-  5  Perry    on    Trusts,     §  454.      See 

ner  I'.  RajTier  (1904),  1  Ch.  176,  where  Poole  v.  Munday,  103  Mass.  174,  for 

it  was  queried  whether  the  word  "  se-  an  exceptional  case  where  the  rule 

curities  "  had  not  changed  so  as  to  in-  was  not  enforced. 


CH.  VI.]         trustees;  their  powers  and  duties. 


221 


shares  of  pul)lic'  companies,  and  the  rule  is  the  same  in  New 
York  and  Pennsylvania.^  But  in  Massachusetts  the  rule  is 
different.' 

Mortgages  on  real  estate  are  considered  proper  investments 
for  trustees  in  the  United  States,  and  in  England  the  investment 
in  such  securities  is  now  authorized  by  statute.^ 

In  several  of  the  United  States  the  subject  of  investments  by 
trustees  is  expressly  regulated  by  statute.^ 

If  a  trustee  invests  in  securities  which  he  is  not  authorized 
to  buy,  the  cestui  que  trust  may  elect  to  adopt  or  to  reject  the  in- 
vestment. If  the  investment  is  rejected,  it  belongs  to  the  trus- 
tee subject  to  a  lien  for  the  purchase-money  in  favor  of  the  trust 
estate.  If,  however,  the  tmstee  invests  in  securities  which  he 
is  authorized  to  buy,  but  fails  to  use  due  care  in  the  purchase 
of  them,  the  investment  belongs  to  the  tiTist  estate,  and  the 
trustee  is  liable  to  make  good  any  loss  which  may  ensue. ^ 

It  is  proper  to  add  that  the  foregoing  statements  of  the  law 
in  reference  to  investments  apply  to  trustees  pi'operly  so  called; 
they  may  not  be  applicable  to  persons  who  may  be  styled  quasi- 
trustees  or  trustees  suh  modo — as,  for  instance,  the  manager  of 
a  trading  company  or  the  directors  of  a  bank  or  a  railway.  In- 
vestments by  such  persons  "are  to  be  judged,  not  by  the  rules 
which  have  been  laid  down  as  to  the  investment  of  settled  funds, 
but  (more  nearly,  at  all  events)  by  those  which  regulate  the  du- 
ties of  the  managing  partners  of  an  ordinary  trading  firm  as 


1  Ackerman  r.  Emott,  4  Barb.  626; 
Hemphill's  Appeal,  18  Pa.  303;  Wor- 
reir.s  Appeal,  22  Id.  44;  Perry  on 
Trusts,  §456;  Hill  on  Trustees,  578 
(4th  Am.  od.).  In  Kentucky  (Stat- 
utes, §  4706)  trust  funds  may  be  in- 
vested in  the  bonds  of  any  railroad 
which  has  been  in  operation  more 
than  ten  years  and  has  not  durinji 
that  time  defaulted  in  the  payment  of 
its  bonded  debt.  Aydelott  v.  Breed- 
ing, 111  Ky.  847;  Deposit  Bank  r. 
Rose,  113  Ky.  946. 

-  Harvard  Coll.  r.  Amory,  9  Pick. 
446;  Lovell  r.  Minot,  20  Id.  116; 
Perry  on  Trusts,  §  456.  But  is  re- 
sponsible for  the  exercise  of  a  sound 
discretion    in    making    such    invest- 


ments. Davis'  Appeal,  183  Mass. 
499;  Thayer  v.  Dewey,  185  Mass. 
68. 

3  Perry  on  Trusts,  §§  457,  458; 
Stat.  22  and  23  Vict.,  c.  35  (Lord  St. 
Leonard's  Act).  As  to  what  should 
be  the  amount  of  the  loan  in  propor- 
tion to  the  value  of  the  property,  see 
Lewin  on  Trusts,  363-365  (10th  Eng. 
cd.);  In  re  Olive,  34  Ch.  D.  72. 

4  Perry  on  Trusts,  §  459.  See 
Cridland's  Estate,  132  Pa.  486;  Wal- 
ler )•.  Catlett,  83  Va.  200,  where  an 
investment  in  Confederate  bonds  was 
held  not  to  be  a  breach  of  trust,  since 
the  trustee  acted  "  in  good  faith  and 
with  the  lights  of  that  time." 

5  In  re  Salmon,  42  Ch.  D.  351. 


222 


trustees;  their  powers  and  duties.       [part  I. 


between  themselves  and  those  partners  who  do  not  take  an  ac- 
tive part  in  the  conduct  of  the  firm's  business."  ^ 

142.  When  trustees  are  chargeable  with  interest. 

A  trustee  is  chargeable  with  interest  on  balances  that  he  im- 
properly retains  in  his  hands,  and  sometimes  with  compound 
interest  ;2  and  he  is  also  so  chargeable  when  he  mixes  the  trust 
funds  with  his  own  and  deposits  them  in  his  own  name;^  but 
not  otherwise.'*  Moreover,  if  a  trustee  is  directed  by  a  trust  in- 
strument to  invest  in  a  particular  stock,  and  neglects  to  do  so, 
the  cestui  que  trust  has  his  election  to  take  the  money  and  legal 
interest  thereon,  or  so  many  shares  of  stock  as  the  money  would 
have  purchased  at  the  time  when  the  investment  ought  to  have 
been  made,  and  the  dividends  on  the  same.^  And  so,  if  a  trus- 
tee embarks  the  trust  funds  in  business,  the  cestui  que  trust  may 
take  either  the  amount  with  interest,  or  the  profits  of  the  busi- 
ness ;  *  but  if  he  elects  to  take  the  latter,  he  must  take  them  cum 
onere,  and  nmst  share  the  losses.^ 


1  Per  Sterling,  J.,  in  Leeds  Est. 
Building  and  Investment  Co.  v.  Shep- 
herd, 36  Ch.  D.  798.  See  what  is 
said  by  the  same  judge  to  the  same 
effect  in  the  Sheffield  and  South 
Yorkshire  Permanent  Building  Soci- 
ety V.  Aizlewood,  44  Ch.  D.  454.  See, 
also,  the  remarks  of  Kay,  J.,  In  re 
Faure  Electric  Accumulator  Com- 
pany, 40  Ch.  D.  150,  and  the  cases 
referred  to  by  him. 

2  See  Penny  v.  Avison,  3  Jur.  (n.  s.) 
62;  Barclay  v.  Andrew  [1899],  1  Ch. 
674;  Schiefflin  v.  Stewart,  1  Johns. 
Ch.  620;  Manning  v.  Manning,  Id. 
536  (see  Minini  v.  Cox,  5  Id.  448, 
for  a  case  in  which  the  trustee  was 
not  charged);  Bruner's  Appeal,  57  Pa. 
46;  Norris's  Appeal,  71  Id.  123;  Gray 
V.  Thompson,  1  Johns.  (;h.  82;  In  re 
Ricker's  Estate,  14  Mont.  153;  Noble 
V.  Jackson,  124  Ala.  311;  Jacoway  v. 
Hall,  67  Ark.  340 ;  Sanquinett  v.  Web- 
ster, 153  Mo.  343. 

3Vemer's  Estate,    6   Watts,    251; 


Dyott's  Appeal,  2  W.  &  S.  565;  Rob- 
inett's  Appeal,  36  Pa.  174;  Wistar's 
Appeal,  54  Id.  60;  Hess's  Estate,  68 
Id.  458;  In  re  Assignment  of  Mur- 
doch &  Dickson,  129  Mo.  488;  In  re 
Thompson,  101  Cal.  349;  St.  Paul's 
Trust  Co.  V.  Kittson,  62  Minn.  408; 
Re  Hodges'  Estate,  66  Vt.  70;  Noble's 
Estate,  Irwin's  Appeal,  178  Pa.  460. 

4  Hess's  Estate,  68  Pa.  458.  See 
Mathewson  v.  Davis,  191  111.  391,  for 
a  case  in  which  the  trustee  was  not 
charged. 

5  Shepherd  v.  Mouls,  4  Hare,  504 ; 
Robinson  v.  Robinson,  1  De  G.,  M.  & 
G.  256;  Byrchall  v.  Bradford,  6  Mad. 
235;  Perry  on  Trusts,  §  469.  See, 
also,  Mclntire  v.  Zanesville,  17  Ohio 
St.  352;  Norris's  Appeal,  71  Pa.  125; 
Lamb's  Appeal,  58  Id.  142;  Key  v. 
Hughes's  Ex'rs,  32  W.  Va.  184. 

0  Jones  V.  Foxall,  15  Beav.  392;  In 
re  Davis  [1902],  2  Ch.  314;  Robinett's 
Appeal,  36  Pa.  174;  Kyle  v.  Barnett, 
17    Ala.    306;    Barney   v.   Saimders, 


7  Small's  Estate.  144  Pa.  293. 


CH.  VI.]         trustees;  their  powers  and  duties. 


223 


143.  Trustee  caunot  use  his  positiou  for  his  own  ad  van- 
tage. 

It  is  one  of  the  fundamental  principles  of  trusts,  that  a  trus- 
tee cannot  use  his  position  as  a  trustee  for  his  own  advantage 
in  any  way.^  He  must  have  an  eye  single  to  the  interests  of 
the  cestui  que  trust.  The  rule  in  the  Rumford  Market  Case,  and 
similar  cases  already  noticed  under  the  head  of  Constructive 
Trusts,  are  illustrations  of  the  strictness  with  which  this  rule  is 
enforced."  A  trustee  cannot  make  any  profit  at  the  expense  of 
the  trust  estate ;  ^  he  cannot  use  trust  funds  for  his  own  benefit;  "* 
he  cannot  buy  in  trust  property  for  himself  at  his  own  sale,  or 
a  sale  procured  by  him,  nor  can  he  buy  up  any  debt,  charge,  or 
encumbrance  to  which  the  trust  estate  is  liable,  at  less  than  io 
actuallv  due  thereon,  and  then  collect  the  full  amount  from  tlie 
estate.^  And  it  has  been  held  in  many  cases  that  a  trustee  may 
not  even  purchase  the  trust  property  at  a  judicial  sale,  l)rouglit 
about  by  a  third  party,  and  which  he  had  taken  no  part  in  jho- 
curing;*  although  upon  this  point  there  are  several  authoritiis 
the  other  way.^    Contracts  between  a  trustee  and  cestui  que  tnut 


16  How.  543;  McKnight's  Ex'rs  r. 
Walsh,  23  N.  .J.  Eq.  146;  Perry  on 
Trusts,  §  470.  See  Whitney  r.  Smith, 
4  Ch.  App.  513;  Perrin  v.  Lepper,  72 
Mich.  454. 

1  Green  v.  Winter,  1  Johns.  Ch.  36; 
Kepler  v.  Davis,  SO  Pa.  157;  Aber- 
deen Town  Council  v.  Aberdeen  Uni- 
versity, 2  App.  Cas.  549. 

-  Ante,  §§  92  et  aeq.  See,  also,  Blau- 
velt  V.  Ackerman,  20  N.  J.  Ecj.  141; 
Washington  R.  R.  Co.  v.  Alexandria 
R.  R.  Co.,  19  Gratt.  592;  Boerum  ?'. 
Schcnck,  41  X.  Y.  1S2. 

^  .\s  to  trustees'  liability  for  profits, 
.sec  Springer's  Estate,  51  Pa.-  343. 

*  McFlachern  v.  Stewart,  114  N. 
Car.  370. 

5  Burgess  v.  Wheate,  1  Eden,  22(); 
Sugdcn  r.  Crossland,  3  Sm.  &  Giff. 
192;  Robinson  r.  Rett,  3  P.  Wms. 
251,  n.  {(i);  Michoud  r.  Girod,  4  How. 
503;  Pooley  v.  Quiltcr,  4  Drew,  184; 
2  De  G.  &  J.  327;  Schoonmakcr  v.  Van 
Wyck,  31  Bart.  457;  Herr's  Estate, 
'  1  Gr.  Cas.  272;  Parshall's  Appeal,  65 


Pa.  235;  Baker's  Appeal,  120  Id.  ;5:!; 
Barksdale  r.  Finney,  14  Gratt.  33S; 
Green  v.  Winter,  1  John.s.  Ch.  27; 
Averitt  v.  Elliot,  109  N.  C.  5(50.  The 
rule  does  not  apply  to  a  mortgagee 
with  power  of  sale.  Knox  v.  .\rmi- 
stead,  87  Ala.  511.  A  mortgagee 
exercising  a  power  of  sale  is,  techni- 
cally, an  attorney  of  the  mortgagor. 
Reynolds  r.  Hennessy,  15  R.  I.  215. 

eObert  r.  Obert,  1  Beas.  423; 
Ricketts  r.  Montgomery,  15  Md.  46; 
Jamison  c.  Glascock,  29  Mo.  191; 
Bank  r.  Dubuque,  8  la.  277;  Elliott 
r.  Pool,  3  Jon.  Eq.  17;  Campbell  r. 
Johnson,  1  Sandf.  Ch.  148;  Chand- 
ler V.  Moulton,  33  Vt.  245;  Martin  v. 
Wynkoop,  12  Ind.  266;  Ogden  r. 
I^arrabee,  57  111.  389;  King  v.  Rem- 
ington, 36  Minn.  15;  Chiles  v.  Gal- 
lagher, 67  Miss.  413. 

7  Prevost  r.  Gratz,  1  Pet.  C.  C. 
364;  Fisk  v.  Sarber,  6  W\  &  S.  18; 
Chorpenning's  Appeal,  32  Pa.  312; 
Elrod  V.  Lancaster,  2  Head,  571; 
Mercer    v.    Newsom,    23    Ga.    151; 


224  trustees;  their  powers  and  duties.        [part  i. 

mmj  be  made,  but  they  are  scrutinized  by  the  courts  with  great 
severity.^ 

144.  Compensation  of  trustees;  difference  between  Eng- 
lisli  rule  and  that  in  most  of  the  United  States. 

The  rule  that  a  trustee  can  obtain  no  benefit  whatever  from 
his  j)o.sition,  was  in  England  carried  to  the  extent  of  holding 
that  he  was  not  even  entitled  to  compensation  for  his  trouble 
and  responsibility  in  the  care  and  management  of  the  trust 
estate,  unless  it  was  expressly  allowed  in  the  trust  instrument,^ 
except,  perhaps,  in  some  very  extraordinary  cases;  '^  and  this  rule 
applies  also  to  executors,  guardians,  receivers,  directors  of  cor- 
porations, and  in  general  to  all  fiduciaries.''  But  this  rule  has 
not  been  adopted  in  the  United  States;  and  trustees  and  other 
fiduciaJ'ies  in  this  country  are  entitled  to  a  reasonable  compen- 
sation for  their  services.^  The  amount  is  in  some  states  fixed 
by  statute,  and  in  others  regulated  by  the  court  to  which  the 
trustees  are  liable  to  account.^  The  English  rule  in  regard  to 
commissions  was  cited  with  approval  by  Chancellor  Kent,  in 
two  early  cases  in  New  York;^  but  the  only  states  in  which  it 
is  now  followed  appear  to  be  Delaware  *  and  Illinois.* 

In  England,  however,  trustees  are  allowed  for  their  expenses 
reasonably  and  properly  incurred  in  the  execution  of  the  tmst;  ^"^ 
and  it  need  hardly  be  added  that  the  same  rule  exists  in  the 
United  States.^ ^  Allowances  to  trustees  are,  however,  in  the  dis- 
cretion of  the  court;  and  even  the  expenses  of  a  trustee  will 

Huger  V.  Huger,   9  Rich.   Eq.  217;  §  916.     See  Wistar's  Appeal,  54  Pa. 

Earl  V.  Halsey,  1  McCart.  332;  Hill  63;  Ward  r.  Funsten,  86  Va.  359. 

on  Trustees,  249,  250,  note  (4th  Am.  «  See  Perry  on  Trusts,  §  918,  notes, 

ed.);  note  to  Fox  y.  Mackreth,  1  Lead.  where   the   authorities  and   statutes 

Cas.  Eq.  252  et  seq.   (4th  Am.  ed.).  are  collected;  Dufford  v.  Smith,   46 

See  ante,  §  94.     For  discussion  of  this  N.  J.  Eq.  216. 

point  see  article  in  31  Am.  Law  Reg.  ^  Green  v.  Winter,  1  Johns.  Ch.  37; 

743,  748.  Manning  v.  Manning,  Id.  534. 

»  Perry    on    Trusts,    §  428.      Post,  s  Egbert  v.  Brooks,  3  Harring.  112; 

Part  IL,  Chap.  IL,  Sec.  TIL  State  v.  Piatt,  4  Id.  154. 

2  Robinson  v.  Pett,  3  P.  Wms.  251;  »  Constant  v.  Matteson,  22  111.  546; 
2  Lead.  Cas.  Eq.  206,  and  notes.  Buckingham  v.  Morrison,  136  111.  437. 

3  In  re  Freeman's  Settlement  ^  Perry  on  Trusts,  §  910;  Hill  on 
Trusts,  37  Ch.  D.  148.  Trustees,  574. 

4  Perry  on  Trusts,  §  904.  Notes  to  n  Green  v.  Winter,  1  Johns.  Ch.  37; 
Robinson  v.  Pett,  supra.  '  Towle  v.  Mack,  2  Vt.  19;  McElhenny's 

•''Notes  to  Robinson  i".  Pett,  2  Appeal,  46  Pa.  347;  Perrine  r.  Newell, 
Lead.  Cas.  Eq.  206;  Perry  on  Trusts,       49  N.  J.  Eq.  57. 


CH.  VI.]         trustees;  their  powers  Ai\d  duties. 


225 


not  be  reimbursed  if  they  have  been  incurred  unnecessarily, 
and  against  the  remonstrances  of  the  cestui  que  trust. ^  A  for- 
tiori will  they  not  be  allowed  when  the  trustee  has  assumed  a  hos- 
tile attitude  to  the  trust  estate  and  claimed  the  same  as  his  own.^ 
Trustees  may  claim  indemnity  from  their  cestui  que  trust 
for  liabilities  incurred  on  behalf  of  the  tmst  estate.  It  was  said 
in  an  early  case  that  "a  cestui  que  trust  ought  to  save  his  trustee 
harmless  as  to  all  damages  relating  to  the  trust,"  ^  and  this  doc- 
trine has  been  recognized  in  modern  cases.  The  plainest  princi- 
ples of  justice  require  that  where  the  beneficial  owner  is  abso- 
lutely entitled  to  the  entire  estate,  he  should  personally  bear 
the  burden  incidental  to  such  ownership;  and  that  even  where 
the  trust  property  is  settled  on  tenants  for  life  and  children  the 
right  of  their  trustee  to  be  indemnified  out  of  the  whole  tmst 
estate  against  any  liability  arising  out  of  any  part  of  it,  would 
seem  to  be  clear  and  indisputable."* 

145.  Trustee  cannot  delegate  liis  authority. 

The  position  of  trustee  is  one  of  personal  confidence,  and  he 
cannot,  therefore,  delegate  his  office  even  to  a  co-trustee.^  A 
tmstee  may,  however,  employ  a  steward,  agent,  or  attorney  in 
cases  where  it  is  usual  to  do  so  in  the  ordinary  course  of  busi- 
ness,* or  a  broker,'  but  he  must  be  careful  to  see  that  the  agent 
employed  is  impartial.*  One  of  several  trustees  may  act  as 
agent  for  the  others." 


V.  Belilios  [1001],  A.  C. 
Perpetual  Trustee  Co. 


1  Berryhill's  Appeal,  35  Pa.  245; 
Walker  v.  Walker,  9  Wall.  743. 

2  p^uUer  V.  Abbe,  105  Wis.  235. 

3  Balsh  V.  Hyham,  2  P.  Wms. 
453. 

*  Hardoon 
123;  Wi.se  ?'. 
[1!M«],  A.  C.  149. 

■>  Hawley  v.  James,  5  Paige  Ch. 
487;  Pearson  v.  Jamison,  1  McLean 
C.  C.  197;  Robinson  v.  Harkin  [1896], 
2(']i.  415. 

^  Ex  parte  Belchier,  Amb.  219; 
Hawley  v.  James,  5  Paige  Ch.  487; 
May  V.  Frazee,  4  Litt.  391;  Telford 
I'.  Barney,  1  la.  591 ;  Blight  v. 
Schenck,  10  Pa.  285;  Lewis  v.  Reid, 
11  Ind.  239;  Mason  f.  Wait,  4  Scam. 
127;  Abbott  v.  Rubber  Co.,  33  Barb. 

15 


579;  Sinclair  i\  Jackson,  8  Cow.  543; 
Webb  V.  Ledsam,  1  K.  &  J.  385;  Leg- 
gett  V.  Hunter,  19  N.  Y.  445;  Bowes 
V.  Seeger,  8  W.  &  S.  222.  It  seems 
to  be  unsettled  exactly  how  far 
trustees  are  responsible  for  money 
collected  by  an  attorney-at-law 
whom  they  have  employed.  See 
Perry  on  Trusts,  §  405. 

7  Speight  V.  Gaunt,  9  App.  Cas.  1, 
where  Ex  parte  Berchier  was  ex- 
pressly recognized.  See  Robinson  v. 
Harkin  [1896],  2  Ch.  420,  where  a 
trustee  was  held  responsible  for  en- 
trusting funds  to  an  "outside" 
broker. 

8  Knox  V.  Mackinnon,  13  App.  Cas. 
767. 

»  Ex  parte  Rigby,  19  Ves.  463. 


226  trustees;  their  powers  and  duties.       [part  i. 

146.  Responsibility  for  acts  of  co-trustee. 

Questions  have  frequently  arisen  as  to  the  responsibihty  of 
a  trustee  for  the  acts  of  his  co-trustee,  and  how  far  he  is  hal^lo 
for  money  for  which  he  has  joined  in  giving  a  receipt,  but  which 
has  been  actually  paid  into  the  hands  of  a  co-trustee  and  lost. 

The  general  principle  which  governs  cases  of  this  description 
seems  to  be,  that  a  tmstee  will  be  required  to  act  in  regard  to 
the  trust  estate  with  the  same  diligence  and  care  which  a  care- 
ful man  displays  in  the  conduct  of  his  own  affairs,^  to  exercise 
good  faith,  and  not  to  connive  or  in  any  way  aid  any  bad  faith 
on  the  part  of  a  co-trustee;  but  he  is  not  required  actively  to 
unite  with  his  co-trustee  in  everything  which  is  done  in  the 
administration  of  the  trust.'  The  rule  is,  that  a  trustee  is  gen- 
erally not  responsible  for  the  conduct  of  his  co-trustee.  Upon 
this  subject  the  leading  authorities  are  the  cases  of  Townley  v. 
Sherborne  '''  and  Brice  v.  Stokes."  In  the  first  of  these  cases  it 
was  resolved  that  where  lands  or  leases  are  conveyed  to  two  or 
more  upon  trust,  and  one  of  them  receives  all  or  the  most  part 
of  the  profits,  and  afterwards  dies  or  becomes  insolvent,  his  co- 
trustee shall  not  be  charged  or  be  compelled  to  answer  for  the 
receipt  of  him  so  dying  or  becoming  insolvent,  unless  some  fraud 
or  evil  dealing  appear  to  have  been  in  them  to  prejudice  their 
trust.  The  reason  of  this  decision  is,  that  trustees  being  by  law 
joint-tenants,  every  one  is  equally  entitled  to  receive  the  rents. 
In  Brice  v.  Stokes  ^  the  tmstee  was,  under  the  particular  cir- 
cumstances of  the  case,  made  responsible  for  money  for  which 

1  Neff's  Appeal,  57  Pa.  91;  Jones's  co-trustee  before    his    illness,  which 

Appeal,   8   W.   &   S.    150;   Fesmire's  should  have  put  him  on  guard  against 

Estate,    134   Pa.   85;   Davis  v.   Har-  a   possible   misappropriation   of    the 

man,  21  Gratt.  200.     See  Sutton  r.  trust   funds.     Adams's   Estate,    221 

Wilders,  L.  R.  12  Eq.  373.  Pa.  77. 

The  fact  that  one  of  two  trustees  2  Ochiltree   v.    Wright,    1    Dev.    & 

bestowed  the  same  degree  of  care  on  Bat.   Eq.   336;   Ray  v.   Doughty,   4 

his  own  interest  in  the  trust  estate  Blackf.  115. 

and  upon  his  own  private  securities  as  3  Bridg.  35;  2  Lead.  Cas.  Eq.  858 

ho  did  upon  the  interest  of  the  other  (4th  Eng.  ed.). 

rcstuis  que  trustent  is  no  excuse  ior  his  <  11    Ves.   319;   2   Lead.   Cas.   Eq. 

dereliction  of  duty  in  not  properly  865. 

guarding  the  trust  estate  from  a  de-  ^  See  2  Lead.  Cas.  Eq.  865,  and 

fault  on  the  part  of  his  co-trustee;  nor  notes;  Bowes  v.  Seeger,  8  W.  &  S. 

is  the  illness  of  such  a  trustee  prior  222;  Sinclair  v.  Jackson,  8  Cow.  543; 

to  the  default  of  the  co-trustee  an  ex-  Peter    v.    Beverly,    10    Pet.    562;    1 

cuse,  where  the  trustee  had  know!-  How.  134;  Taylor  (?.  Benham,  5  How. 

edge  of  actions  on  the  part  of  his  233;  Perry  on  Trusts,  §  417. 


CH.  VI.]         trustees;  their  powers  and  duties.  227 

he  had  joined  in  a  receipt,  although  the  amount  had  not  been 
actually  received  by  him;  but  the  general  rule  (which  has  since 
been  acted  upon)  was  laid  down  by  Lord  Eldon  to  be,  that  at 
law,  where  trustees  join  in  a  receipt,  prima  facie  all  are  to  be 
considered  as  having  received  the  money;  but  that  it  is  com- 
petent to  a  trustee,  and,  if  he  means  to  exonerate  himself  from 
that  inference,  it  is  necessary  for  him  to  show  that  the  money 
acknowledged  to  have  been  received  by  all  was  in  fact  received 
by  one,  and  the  others  joined  only  for  conformity.^ 

But  while  it  is  true,  as  a  general  rule,  that  a  trustee  shall  not 
be  liable  for  the  acts  or  defaults  of  his  co-trustee,  yet  any  fraud, 
or  improper  dealing,  or  gross  negligence  on  the  part  of  a  trustee 
(as,  for  example,  if  he  were  to  stand  by  and  see  a  breach  of  trust 
committed  by  his  co-trustee),  will  render  him  responsible.^  As 
soon  as  a  trustee  is  fixed  with  knowledge  that  a  co-trustee  is 
misapplying  the  money,  a  duty  is  imposed  upon  him  to  bring 
it  back  into  the  joint  custody  of  those  who  ought  to  take  better 
care  of  it.^  And  although  a  trustee  (according  to  the  rule  laid 
down  by  Lord  Eldon  in  Brice  v.  Stokes)  may  not  be  liable  by 
joining  in  a  receipt,  yet,  if  (as  in  that  case)  the  transaction  is  un- 
necessary, and  he  permits  his  co-trustee  to  keep  and  deal  with 
the  trust  moneys  contrary  to  the  trust,  he  will  be  charged  with 
any  loss  which  may  have  occurred.^ 

Where  two  or  more  trustees  have«accepted  the  trust,  no  one 

1  See  Kip  v.  Deniston,  4  Johns.  R.  and  directs  that  the  estate  shall  be 
23.  Trustees  are  regarded  in  equity  invested  in  a  particular  manner,  and 
as  one  collective  trustee  (so  to  speak),  one  of  the  trustees  takes  the  estate 
and  all  must  enter  into  the  act  to  be  and  embezzles  it,  the  other  trustee 
done.  In  that  respect  they  differ  will  be  liable  for  the  loss,  if  it  appears 
from  executors.  See  Fesmire  v.  that  he  made  no  effort  to  invest  the 
Shannon,  14.3  Pa.  209,  for  an  ex-  estate  in  the  manner  directed  by  the 
planation  of  this  distinction.  will,    and    merely    relied    upon    the 

2  See  Mucklow  v.  Fuller,  Jac.  Ch.  statement  of  the  other  trustee  that 
198;  Booth  v.  Booth,  1  Beav.  125;  it  had  been  so  invested.  Beatty's 
Styles  V.  Guy,   1  MacN.  &  G.  422;  Est.,  214  Pa.  449. 

Taylor  v.  Roberts,  3  Ala.  86;  Worth  3  i  Sug.  V.  &  P.  93  (8th  Am.  ed.); 


?'.  McAden,  1  Dev.  &  Bat.  Eq.  199 
Latrobe  v.  Tiernan,  2  Md.  Ch.  474 
Monell  V.  Monell,  5  Johns.  Oh.  283 


Wayman  v.  Jones,  4  Md.  Ch.  506. 

*  Thompson    v.    Finch,    22    Beav. 
316;  8  De  G.,  M.  &  G.  560;  Mendes  v. 


Irwin's  Appeal,  35  Pa.  294;  Ducom-  Guedalla,   2  J.   &   H.   259;   Clark  v. 

mun's  Appeal,   17  Id.  268;  Clark  v.  Clark,  8  Paige  Ch.  152;  Wayman  r. 

Clark,  8  Paige  Ch.  153;  Mary  Evans's  Jones,  4  Md.  Ch.  500;  Barroll  v.  For- 

Estatc,  2  Ashm.  470.  man,  88  Ud.  188;  Elmendorf  v.  Lan- 

Where  a  will  appoints  two  trustees,  sing,  4  Johns.  Ch.  562;  Ringgold  v. 


228  trustees;  their  powers  and  duties.       [part  i. 

of  them  can  escape  responsibility  by  leaving  the  discharge  of 
the  duties  of  the  trust  to  his  associate  or  associates.  Each  one 
must  be  vigilant;  and  no  one  can  excuse  himself  from  respon- 
sibility for  loss  simply  on  the  ground  that  he  left  the  custody 
of  securities  or  the  collection  of  assets  altogether  in  charge  of 
his  colleagues  in  the  trust. ^ 

When  a  number  of  trustees  are  appointed  they  constitute,  so 
to  speak,  but  one  trustee;  and  hence,  in  any  business  of  the 
trust,  they  must  all  concur;  -  but  this  rule  does  not  apply  to  the 
case  of  public  trusts,  in  which  the  acts  of  a  majority  are  binding.^ 

147.  Remedies  for  breach  of  trust. 

^^'hen  a  breach  of  trust  has  been  committed,  the  remedy  of 
the  injured  party  is  twofold,  first,  by  holding  the  trustees  or 
(in  the  case  of  death)  their  representatives  responsible;  and, 
secondly,  by  removal  of  the  trustees. 

Trustees  who  have  committed  a  breach  of  trust,  or  their  rep- 
resentatives, cannot  set  up  the  statute  of  limitations;''  but  the 
remedy  of  the  cestuis  que  trustent  may  be  barred  by  concurrence, 
acquiescence,  or  executing  a  release,  providing  they  are  not  un- 
der any  disability,  such  as  infancy,  coverture,  or  the  like.^ 

Upon  proper  cause  shown,  a  court  of  equity  will  remove  a 
trustee.^    The  court,  moreover,  has  power  to  fill  a  vacancy  in 

Ringgold,  1  H.&Ciill,  11;  Jones'&Ap-  ture   does  not   protect  the   separate 

peal,   8   W.   &  S.   147;   Edmonds  v.  estate  of  a  married  woman.    Clive  v. 

Crenshaw,  14  Pet.  166.  Carew,  1  Johns.  &  H.  199. 

iStong's  Estate,    160   Pa.   13;   Ir-  e  Pgrry  on  Trusts;   Hill   on  Trus- 

vine's  Estate,  203  Id.  606.     See,  in  tees,  298  (4th  Am.  ed.);  May  v.  May, 

this  connection,  Dyer  r.  Riley,  51  N.  167  U.  S.  310;  Allen  v.  Allen,  84  Ala. 

J.   Eq.   124,   where   the   trustee  was  367;  Wilson  r.  Wilson,  145  Mass.  490; 

held  not  answerable  for  a  loss.  Waterman  v.  Alden,  144  111.  91;  Polk 

-  Perry  on  Trusts,  §  411.  v.  Linthicum,  100  Md.  615;  Barker  v. 

3  Id.  §  413.  Barker,   73  N.  H.  353.     If  trustees 

<  They  can  set  up  the  negligence  of  have   acted    honestly   and    in    good 

.the  ce.itui  que  trust  in  asserting  his  faith    they   are    not    necessarily    to 

rights.     Bright  v.  Legerton,  2  De  G.,  be  removed  because  the  trust  funds 

F.  &  J.  606.     See,  also,  Hunter  v.  have  sustained  losses  through  their 

Hubbard,  26  Tex.  537;  New  Market  investment  and  because  the  lack  of 

V.   Smart,    45    N.    H.    87;    Smith    v.  method    of    keeping    their   accounts 

Drake,  23  N.  J.  Eq.  .305.     On  this  was    decidedly    unbusinesslike    and 

subject  see  Sullivan   r.   Latimer,   35  exceedingly  careless.     The   question 

S.  C.  422;  McCartin  v.  Traphagen,  43  is   one   addressed    to   the    discretion 

N.  J.  Eq.  323.  of  the  court.     Murdoch  v.  Elliot,  77 

5  2  Lead.   Cas.   Eq.  916,   919   (4th  Conn.  247 
Eng.  ed.).     This  disability  of  cover- 


CH.  VI.]         trustees;  their  powers  and  duties. 


229 


a  trust,  whether  occasioned  by  removal,  or  non-acceptance  of 
the  trust,  or  death,  or  resignation.  The  jurisdiction  to  appoint 
a  trustee  to  fill  a  vacancy,  however  occasioned,  is  exercised  un- 
der the  inherent  jurisdiction  of  the  court,  by  bill;  ^  but  both  in 
England  and  in  the  United  States,  statutes  have  been  passed 
authorizing  courts  of  equity  to  give  summary  relief  in  such 
cases  on  petition.  It  is  scarcely  necessary  to  observe  that  the 
court,  in  filling  the  vacancy,  cannot  vary  the  terms  of  the 
trust.- 

A  trustee  is  entitled  to  come  into  ecjuity  for  the  purpose  of 
obtaining  the  advice  and  assistance  of  the  court  in  the  execu- 
tion of  his  trust;  ^  and  the  advisability  of  a  trustee  thus  seeking 
the  guidance  of  the  court  may  be  illustrated  by  the  case  of  In 
re  Brogden.'*  There,  the  settlor  in  a  marriage  settlement  cov- 
enanted to  pay  ten  thousand  pounds  to  the  trustees  of  the  set- 
tlement within  five  years  after  his  decease.  The  settlor  died, 
being  then  a  member  of  a  firm  composed  of  himself  and  his  sons. 
The  five  years  expired  in  1874.  The  trustees  forebore  to  press 
for  payment.  In  1880  the  firm  (which  had  been  continued  after 
the  testator's  death)  became  insolvent,  and  the  ten  thousand 
pounds  could  not  then  be  collected  from  it.  In  a  proceeding 
against  the  trustees  under  the  settlement  to  hold  them  per- 
sonally responsible,  North,  J.,  said:  "If  he  (the  only  solvent 
trustee,  the  others  being  the  brothers  of  the  cestui  que  trust  and 
members  of  the  insolvent  firm)  had  applied  for  the  sanction  of 
the  court  to  the  course  he  contemplated,  the  court  would  have 
authorized  him  to  sue  or  to  abstain  from  suing,  as  the  case  may 
be,  a7id  in  either  case  he  ivould  have  been  perjectly  safe  whatever 
the  results  might  liave  been." 


1  Griswold  v.  Sackett,  21  R.  I.  206. 

2  Society  of  the  Cincinnati's  Ap- 
peal, 154  Pa.  621. 

3  Hill  on  Trustees,  543.  See  the 
language  of  North,  J.,  In  re  Brogden, 
38  Ch.  D.  556.  See,  also,  Dill  v.  Wis- 
ner,  88  N.  Y.  160;  Parsons  v.  Millar, 
189  111.  107.  The  right  of  the  trustee 
to  the  advice  of  the  court  is  said  in 
that  case  to  be  the  foundation  of 
what  is  sometimes  termed  the  juris- 
diction of  the  court  to  interpret  wills. 
This  so-called  jurisdiction  to  inter- 
pret wills,  however,   is  not  an  inde- 


pendent division  of  equitable  juris- 
diction. It  grows  out  of  several  of 
the  heads  which  are  noticed  in  this 
book,,  such  as  Trusts,  Injunctions, 
Election,  Fraud,  Creditors'  Bills  and 
others. 

In  this  connection  it  may  be  ob- 
served that  a  trustee  has  no  right  to 
invoke  the  jurisdiction  of  the  court 
merely  for  the  purpose  of  passing 
upon  a  legal  title.  I^evals  v.  Flor- 
ida Cent.  &  Pen.  R.  R.  Co.,  23  U.  S. 
App.  549. 

*  38  Ch.  D.  546. 


230  trustees;  their  powers  and  duties.       [part  i. 

148.  Trustees'  Accounts. 

A  trustee  may  have  his  accounts  investigated  by  the  court; 
and,  on  the  other  hand,  he  is  bound  to  render  proper  accounts 
when  sunnnoned  to  do  so.^  And  a  trustee  who  has  conunitted 
a  breach  of  trust  is  hable  to  account  to  the  cestui  que  trust  for 
the  amount  of  the  trust  funds  which  have  been  misapphed, 
with  interest;  or  for  the  profits  which  he  has  made.  In  other 
words,  it  is  a  cardinal  principle  in  the  management  of  a  trust, 
that  the  trustees  may  lose,  but  cannot  gain. 

1  Pearse  v.  Green,  1  J.  &  W.  135;      dered  by  a  trustee,  see  Ahl's  Appeal, 
Freeman  v.  Fairlie,  3  Meriv.  24,  42.       129  Pa.  43. 
As  to  the  effect  of  an  account  ren- 


CH.  VII.] 


MORTGAGES. 


231 


CHAPTER  VII. 


MORTGAGES. 


149.  The  law  of  Mortgages  no  longer 

peculiar  to  Equity. 

150.  Nature  of  a  Mortgage;  origin  of 

Equity  of  Redemption. 

Nature   of   the   Equity   of   Re- 
demption; limitations. 

Nature  of  Mortgagor's  title  in 
England ;  in  the  United  States. 

Once    a    mortgage,    always    a 
mortgage. 
154.  Distinction  between  mortgages 
and  conditional  sales. 


151. 


152. 


153. 


155.  Absolute  deed  may  be  shown  to 

be  a  mortgage. 

156.  Foreclosure  suits. 

157.  Rights  and  duties  of  mortgagor 

and  mortgagee. 

158.  Tacking. 

159.  Mortgages  to  secure  future  ad- 

vances. 

160.  Merger;  sometimes  prevented  in 

Equity. 

161.  Equitable  mortgages  to  be  con- 

sidered under  Liens. 


149.  The  law  of  Mortgages  no  longer  peculiar  to  Equity. 

The  title  which  the  Court  of  Chancery  called  into  bein^  for 
the  purpose  of  preserving  the  rights  of  a  cestui  que  trust  as 
against  a  trustee  has  been  considered,  and  its  origin,  its  mode 
of  creation,  its  incidents,  and  the  duties  to  which  it  gives  rise 
have  been  discussed.  The  next  title,  originally  recognized  solely 
in  courts  of  equity,  which  requires  notice,  is  that  which  grows 
out  of  the  relation  of  mortgagor  and  mortgagee;  and  it  will  be 
desirable  to  consider  in  this  connection,  not  only  the  equitable 
title  itself,  but  also  a  few  of  those  rights  and  duties  which  are 
connected  with  this  relation.  This  consideration,  however, 
must  necessarily  be  brief,  for  to  enter  at  large  into  a  discussion 
of  all  the  points  which  arise  out  of  the  interesting  subject  of 
mortgages,  would  be  to  go  somewhat  outside  of  the  present  ju- 
risdiction of  courts  of  equity. 

The  subject  of  mortgages,  indeed,  is  one  which,  in  modern 
times,  might  justly  fall  within  the  scope  of  a  treatise  on  com- 
mon law,  rather  than  of  one  which  professes  to  deal  with  the 
extraordinary  jurisdiction  of  the  High  Court  of  Chancer}-;  be- 
cause the  rights  of  the  mortgagor  are  now  so  thoroughly  recog- 
nized in  courts  of  law,  that  their  former  precarious  condition 


232  MORTGAGES,  [PART   I. 

has  become  a  matter  of  history  rather  than  one  of  practical  im- 
portance. But  this  condition  of  things  serves  only  to  justify 
the  remark  made  by  Chancellor  Kent,  that  "the  case  of  mort- 
gages is  one  of  the  most  splendid  instances  in  the  history  of  our 
jurisprudence  of  the  triumph  of  e(iuitable  principles  over  tech- 
nical rules,  and  of  the  homage  which  these  principles  have  re- 
ceived by  their  adoption  in  courts  of  law."  ^ 

Besides,  while  in  many  states  of  the  Union  the  peculiarity 
of  the  relation  of  mortgagor  and  mortgagee  has  disappeared 
under  the  levelling  influence  of  legislative  enactments,  in  others 
it  still  remains,  while  in  all  of  the  United  States  a  knowledge  of 
the  history  of  mortgages  is  necessary  to  a  philosophical  under- 
standing of  the  rules  by  which  they  are  governed. 

150.  Nature  of  a  Mortgage  ;  origin  of  Equity  of  Redemp- 
tion. 

The  jurisdiction  of  equity  upon  the  subject  of  mortgages 
arose  principally  from  two  sources: 

First,  the  harshness  with  which  the  common  law  treated  the 
mortgagor;  and  second,  the  inadequate  relief  which  that  sys- 
tem of  jurisprudence  afforded  to  the  mortgagee. 

As  is  well  known,  a  mortgage  was  a  conveyance  of  land  some- 
times in  fee,  and  sometimes  for  a  less  estate,  with  a  stipulation 
called  a  clause  of  defeasance,-  by  which  it  was  provided  that  in 
case  a  certain  sum  of  money  were  paid  by  the  feoffor  to  the 
feoflfee,  on  a  day  named,  the  conveyance  should  be  void,  and 
either  the  estate  should,  by  virtue  of  the  defeasance,  revest  in 
the  feoffor,  or  he  should  be  entitled  to  call  upon  the  feoffee  for 
a  reconveyance  of  the  same.  The  person  who  borrowed  the 
money  and  conveyed  the  estate  was  called  the  mortgagor,  and 
the  other  ])arty  to  the  contract  and  conveyance  was  the  mort- 
gagee. The  term  mortgage  is  derived  from  the  mortuum  vadium, 
or  dead  pledge  of  the  civil  law;  because  after  the  forfeiture  was 
completed  by  the  non-payment  of  the  money,  the  estate  was 
then  dead  to  the  mortgagor.  Mortgages  are  classed  by  Little- 
ton among  estates  upon  condition.  The  fee  vested  in  the  mort- 
gagee from  the  date  of  the  conveyance,  subject  to  the  condition 
of  being  defeated  by  the  performance  of  the  stipulation  on  the 

1  4   Kent's  Com.    158.     See,   also,  ^  The  defeasance  may  be  in  a  sep- 

the  language  of  Mulkey,  J.,  in  Barrett  arate  instrument.  4  Kent's  Com. 
V.  Hincklev,  124  111.  32.  41. 


CH.  VII.]  MORTGAGES.  233 

part  of  the  mortgagor.  On  the  other  hand,  if  the  condition 
was  broken,  in  other  words,  if  the  money  was  not  paid,  the  es- 
tate in  the  mortgagee  then  became  absolute,  and  the  mortgagor 
lost  his  property  altogether.^ 

As  the  value  of  the  estate  conveyed  was  very  frequently,  if 
not  always,  greater  than  the  debt  which  the  conveyance  was  in- 
tended to  secure,  the  strict  common-law  construction  of  condi- 
tions broken,  and  the  enforcement  of  forfeitures  thereupon, 
necessarily  occasioned  much  hardship.  If  the  mortgagor  v/as 
not  prepared  on  the  day  to  pay  the  amount  due,  the  estate  be- 
came absolute  in  the  mortgagee,  and  no  subsequent  tender  or 
payment  could  operate  to  revest  the  title  in  the  mortgagor,  or 
entitle  him  to  any  relief  in  a  court  of  law^  On  one  side  of  West- 
minster Hall  he  was  entirely  without  remedy.-  On  the  other 
side,  however,  the  Court  of  Chancery  interfered  for  his  relief. 
It  was  considered  in  equity  that  as  the  mortgage  was,  in  point 
of  fact,  only  a  pledge  for  a  debt,^  the  payment  of  the  debt,  to- 
gether with  a  penalty  for  the  delay,  in  other  words,  interest, 
ought  to  entitle  the  debtor  to  have  his  property  back  again; 
that  is  to  say,  equity  recognized  the  mortgagor's  right  to  redeem. 
Hence  arose  that  privilege  on  the  part  of  the  mortgagor,  which 
has  been  so  long  inseparably  connected  with  mortgages,  and 
which  is  known  as  the  equity  of  redemption.  It  was  a  right  not 
recognized  at  common  law%  but  only  in  chancery,  and  hence 
was  called  an  "equity;"  it  was  a  right  to  buy  back  the  land 
pledged,  and  hence  was  termed  "redemption." 

This  right  of  the  mortgagor  was  recognized  as  early  as  the 
reign  of  Queen  Elizabeth.'* 

151.  Nature  of  the  Equity  of  Redemption  ;  limitations. 

In  Roscarrick  v.  Barton  ^  it  was  said  that  the  equity  of  re- 
demption was  a  mere  right,  as  distinguished  from  an  estate;  but 
in  the  leading  case  of  Casborne  r.  Scarfe,''  Lord  Hardwicke  de- 
cided that  it  was  an  estate,  "for,"  said  he,  "it  may  be  devised, 

1  Co.  Litt.  332.  *  Langford  i'.  Barnard,  Tot  hill,  134. 

2  See  remarks  of  Depue,  J.,  in  See,  also,  Emmanuel  Coll.  v.  Evans, 
Shields  v.  Lozear,  34  N.  J.  Law,  496,       1  Ch.  Rep.  18. 

cited  in  Jones  on  Mortgages,  §  9.  ^  I  Ch.  Cas.  217. 

3  "In  equity  we  look  upon  a  mort-  «  Atk.  603;  2  Lead.  Cas.  Eq.  1035 
gage  as  only  a  security  for  the  debt.  "       (4th  Eng.  ed.). 

Van  Gelder  &  Co.  v.  Society,  44  Ch. 
D.  389. 


234 


MORTGAGES. 


[part  I. 


granted,  or  entailed  with  remainders,  and  such  entail  and  re- 
mainders may  be  barred  by  fine  and  recovery,  and  therefore 
cannot  be  considered  as  a  mere  right  only,  but  such  an  estate 
whereof  there  may  be  a  seizin."  This  view  of  the  equity  of  re- 
demption has  been  particularly  observed  in  the  United  States, 
where  a  mortgage  is  looked  upon  as  a  mere  security  for  the  debt, 
and  the  title  is  considered,  for  most  purposes,  as  remaining  in 
the  mortgagor.^  In  some  states,  indeed,  the  mortgage  passes 
no  legal  title  whatever  to  the  mortgagee  until  foreclosure  takes 
place ;  -  while  in  others  the  connnon-law  doctrine  that  the  legal 
title  passes  to  the  mortgagee  is  adhered  to,  subject  (as  already 
stated)  to  the  equitable  doctrine  that  this  passage  of  the  legal 
title  is  merely  by  way  of  security  for  the  debt,  and  that  for  all 
other  purposes  the  mortgagor  is  regarded  as  the  owner.^  In 
some  states  the  subject  is  regulated  by  statute.'* 


iTimms  v.  Shannon,  19  Md.  290; 
Glass  r.  Ellison,  9  N.  H.  69;  Catlin  v. 
Henton,  9  Wis.  476;  4  Kent's  Com. 
100;  2  Wash,  on  Real  Prop.  151; 
Jones  on  Mortgages,  §§  11  et  seq. 

-  Witheroll  v.  Wiberg,  4  Sawyer, 
2.35;  McMillan  v.  Richards,  9  Cal.  409; 
Fojiarty  v.  Sawyer,  17  Id.  592;  Mack 
r.  Wetzlar,  39  Id.  247;  Harp  v.  Cala- 
han,  46  Id.  222;  Drake  v.  Root,  2 
Col  .  085;  Hall  r.  Tunnell,  1  Houst. 
520;  Cooch  r.  Gerry,  3  Har.  280; 
Newbold  v.  Newbold,  1  Del.  Ch.  310; 
Vason  V.  Ball,  55  Ga.  268;  Burnside 
V.  Terry,  45  Id.  621;  Jackson  r.  Cars- 
well,  34  Id.  279;  Fletcher  v.  Holmes, 
32  Ind.  497;  Francis  v.  Porter,  7  Id. 
213;  Chick  v.  WiUetts,  2  Kans.  384; 
Caruthers  v.  Humphrey.  12  Mich.  270; 
Gorham  v.  Arnold,  22  Iil.  247;  Hy- 
man  v.  Kelly,  1  Nev.  179;  Whitmore 
V.  Shiverick,  3  Id.  288;  Waters  v. 
Stewart,  1  Caiaes  Cas.  47;  Jackson 
r.  Willard,  4  Johns.  R.  42;  Runyan  r. 
Mersereau,  11  Id.  534;  Packer  r. 
Rochester,  etc.,  R.  R.  Co.,  17  N.  Y. 
28.3;  Trimm  r.  Marsh,  54  Kl.  003; 
Barrj'  c.  lianiburg-Bremen  Fire  Ins. 


Co.,  110  N.  Y.  1;  Wright  v.  Hender- 
son, 12  Tex.  43;  Walker  v.  Johnson, 
37  Id.  127;  Mann  v.  Falcon,  25  Id. 
271;  Wood  v.  Trask,  7  Wis.  560; 
Balduff  r.  Griswold,  9  Okla.  438. 

3  Duval  V.  McLoskey,  1  Ala.  708; 
Knox  V.  Easton,  38  Id.  345;  Kannady 
V.  McCarron,  18  Ark.  166;  Chamber- 
lain V.  Thompson,  10  Conn.  251; 
Town  of  C'linton  r.  Town  of  West- 
brook,  38  Id.  9;  Carroll  r.  Ballance, 
26  111.  9;  Jackson  r.  Warren,  32  Id. 
331;  Pollock  r.  Maison,  41  Id.  516; 
Harper  v.  Ely,  70  Id.  581;  Ware  v. 
Shentz,  190  111.  189,  193;  Bradley 
V.  Lightcap,  195  U.  S.  17  ;  Stewart 
V.  Barrow,  7  Bush,  368;  Blaney  v. 
Bearce,  2  Me.  132;  Brown  v.  Stewart, 
1  Md.  Ch.  87;  Sumwalt  v.  Tucker,  .34 
Md.  89;  Annapolis,  etc.,  R.  R.  Co.  r. 
Gantt,  39  Id.  115;  Ewer  r.  Hobbs,  5 
Met.  1 ;  Howard  v.  Robinson,  5  Cush. 
119;  Brown  v.  Cram,  1  N.  H.  169; 
Shields  V.  Lozear,  34  N.  J.  Law,  496; 
Hemphill  r.  Ross,  66  N.  C.  477; 
State  V.  Ragland,  75  Id.  12;  Hark- 
rader  v.  Leiby,  4  Ohio  St.  602;  Allen 
V.  Everly,  24  Id.  97,  114;  Simpson's 


*  See  Jv,n.  s  in  .Mi.rtj;ages,  §§  \1'2  et  aeq. 


CH.  VII.] 


MORTGAGES. 


235 


This  equity  of  redemption  was,  however,  hmited  in  point  of 
time.  It  would  have  been  obviously  unjust  to  allow  a  mort- 
gagor, or  persons  claiming  under  him,  an  unlimited  option  to 
redeem,  no  matter  how  many  years  might  have  elapsed  since 
the  date  of  forfeiture.  The  statute  of  limitations,  as  to  real 
estate,^  furnished  a  convenient  standard  by  which  the  duration 
of  this  right  was  to  be  measured;  and  it  was  held  that  after 
twenty  years  from  the  time  of  forfeiture  the  mortgagor's  right 
to  redeem  was  forever  gone.' 

By  analogy  to  the  exceptions  in  the  statute,  ten  years  ad- 
ditional were  allowed  after  the  removal  of  the  impediments 
of  infancy,  coverture,  imprisonment,  or  absence  beyond  the 
seas.* 

This  equity  of  redemption  existed  not  only  in  favor  of  the 
mortgagor,  .but  also  of  other  parties  claiming  under  him.  Thus 
the  heir,  the  devisee,  or  the  alienee  (even  though  a  volunteer) 
of  the  mortgagor,'*  may  redeem.^    So,  also,  may  a  subsequent 


Lessee  v.  Ammons,  1  Binney,  176; 
Britton's  Appeal,  45  Pa.  172;  Tryon 
V.  Munson,  77  Id.  250;  Youngman  v. 
Elmira,  etc.,  R.  R.  Co.,  65  Id.  278; 
Waterman  v.  Matteson,  4  R.  I.  538; 
Henshaw  v.  Wells,  9  Humph.  568; 
Vance  v.  Johnson,  10  Id.  214;  Hagar 
V.  Brainerd,  44  Vt.  294;  Sexton  v. 
Breese,  135  N.  Y.  387;  Western  Union 
Tel.  Co.  V.  Ann  Arbor  R.  R.  Co.,  33 
C.  C.  A.  113;  Hall  v.  Tunnell,  1  Houst. 
320;  Cooch  v.  Gerry,  3  Har.  280; 
Newbold  v.  Newbold,  1  Del.  Ch.  310; 
Hill  V.  Robertson,  24  Miss.  368; 
Buckley  v.  Daley,  45  Id.  338;  Buck 
V.  Payne,  52  Id.  271;  Johnson  v. 
Houston,  47  Mo.  227;  Woods  v.  Hil- 
derbrand,  46  Id.  284;  Pease  v.  Pilot 
Knob  Iron  Co.,  49  Id.  124. 

1  21  Jac.  1,  c.  16. 

2  Anon.,  3  Atk.  313;  Philips  v.  Sin- 
clair, 20  Me.  269;  Demarest  v.  Wyn- 
koop,  3  Johns.  Ch.  129;  Gates  v. 
Jacob,  1  B.  Mon.  308;  Ayres  v.  Waite, 
10  Cush.  72;  Shew  v.  Bank  of  Pitts- 
burg, 16  How.  571;  Bates  v.  Conrow, 
U  N.  J.  Eq.  137;  Cook  v.  Finkler, 


9  Mich.  131;  Gunn  v.  Brantley,  21 
Ala.  633;  Hallesy  v.  Jackson,  66  111. 
139;  McNair  v.  Lot,  34  Mo.  285; 
Montgomery  v.  Chad  wick,  7  la.  114; 
Crawford  v.  Taylor,  42  Id.  260;  Ro- 
gan  V.  Walker,  1  AVis.  527;  Knowl- 
ton  V.  Walker,  13  Id.  264;  Bailey  v. 
Carter,  7  Ired.  Eq.  282;  Randall  v. 
Bradley,  65  Me.  43;  Hoffman  v.  Har- 
rington, 33  Mich.  392;  Hall  v. 
Denckla,  28  Ark.  506;  2  Sug.  V.  & 
P.  109  (8th  Am.  ed.). 

3  1  Lead.  Cas.  Eq.  1065  (4th  Eng. 
ed.);  Jones  on  Mortgages,  §  1114. 

^  Or  an  alienee  whose  interest  ex- 
tends only  to  'part  of  the  equity  of 
redemption  which  originally  resided 
in  the  mortgagor.  Rothschild  v.  Bay 
City  Lumber  Co.,  139  Ala.  571. 

5  Pym  V.  Bowreman,  3  Swanst.  241, 
n.;  Lloyd  v.  Wait,  1  Ph.  61;  Lewis  v. 
Nangle,  2  Ves.  Sr.  431;  Rand  v. 
Cartright,  1  Ch.  Ca.  59.  See  Beach 
V.  Shaw,  57  111.  17;  Smith  v.  Man- 
ning's Ex'r,  9  Mass.  422;  Beach  v. 
Cooke,  28  N.  Y.  508. 


23()  MORTGAGES.  [PART   I. 

mortgagee/  a  judgment-creditor,^  or  the  crown,  or  the  lord  of 
the  fe(^,  on  forfeiture.^  A  tenant  for  hfe  or  for  years,'*  a  re- 
mainderman, a  reversioner,  a  tenant  by  the  curtesy  or  by  devise, 
and  a  jointress  may  all  redeem;**  and,  in  general,  it  may  be  said 
that  this  right  exists  in  favor  of  any  one  who  has  an  interest  in 
the  land,  and  would  be  a  loser  by  foreclosure.^  But  where  a 
party  is  not  affected  by  the  mortgage,  there  is  no  occasion  for 
redeeming,  and  he  is  not  allowed  to  do  so.' 

And  this  right  may,  of  course,  be  exercised  not  only  against 
the  mortgagee,  but  against  any  person  claiming  under  him. 

152.  Nature  of  Mortgagor's  title  in  England  ;  in  the 
United  States. 

The  nature  of  the  mortgagor's  title  has  been  the  subject  of 
some  discussion  both  in  England  and  in  the  United  States.  In 
the  case  of  a  mortgage  there  was  an  equitable  title  given  by  the 
Court  of  Chancery  distinct  from  the  co-existing  legal  title;  and 
in  this  respect,  therefore,  the  relation  of  mortgagor  and  mort- 
gagee resembled  that  of  trustee  and  cestui  que  trust;  but  while 
the  two  relations  had  this  characteristic  in  common,  they  were 
by  no  means  identical.*    It  has  been  tmly  said  that  the  relation 

1  Fell  V.  Brown,  2  Bro.  C.  C.  276;  Opdyke  v.  Bartles,  11  N.  J.  Eq.  13.3; 
Bigelow  V.  Willson,  1  Pick.  493;  McArthur  v.  Franklin,  16  Ohio.  St. 
Haines  v.  Beach,  3  Johns.  Ch.  461;  193;  Denton  v.  Nanny,  8  Barb.  618; 
Scott  V.  Henry,  13  Ark.  112;  Kim-  Henry's  Case,  4  Cush.  257;  Davis  v. 
mell  (;.  Willard,  1  Doug.  (Mich.)  217;  Wetherill,  13  Allen,  60. 

Hill   V.   White,   Saxt.   435;   Wiley   v.  «  Pgarce  v.  Morris,  L.  R.  5  Ch.  229; 

Ewing,  47  Ala.  418;  Beach  v.  Shaw,  Tarn  r.  Turner,  .39  Ch.  D.  456-462; 

57  111.  17;  Hogden  v.  Guttery,  58  Id.  Bogut    v.    Coburn,    27    Barb.    330; 

431;  Manning  r.  Markel,  19  la.  103.  Scott  v.  Henry,  13  Ark.  112;  Piatt  v. 

2  Stonehewer  r.  Thompson,  2  AtJv.  vSquare,  12  Met.  494;  Farnum  v.  Met- 
440;  Mildred  v.  Austin,  L.  R.  8  Eq.  calf,  8  Cush.  46. 

220;   Hitt   v.   Holliday,   2  Litt.   .332;  7  Moore  v.  Season,  44  N.  H.  215; 

Dabney  v.   Green,   4   Hen.   &  Munf.  Brewer  v.  Hyndman,  18  Id.  9;  Smith 

101;    Niagara    Bank    r.    Rosevelt,    9  v.  Austin,  9  Mich.  465;  Boarman  r. 

Cow.  409.  Catlett,     21     Miss.     149;     Purvi.s    r. 

3Att.-Gen.  v.  Crofts,  4  Bro.  P.  C.  Brown,   4   Ired.   Eq.   413.     See   fur- 

136;  Downe  v.  Morris,  3  Hare,  394.  ther  upon  the  subject,   Venderhai.se 

*  Tarn  v.  Turner,  39  Ch.  D.  456.  v.  Hugues,   2   Beas.  410;   Ballard  r. 

5  Ravald  v.  Rus.sell,  1  You.  9;  Raf-  Jones,    6    Humph.    455;    Meehan    ?-. 

fety  V.  King,  1  Keen,  618;  Aynsly  r.  Forrester,   52   N.   Y.   277;    Whittick 

Reed,  1  Dick.  249;  Palmes  r.  Danby,  v.  Kane,  1  Paige  Ch.  202;  Dunlap  r. 

Prec.    Ch.    137;    Jones    v.    Meredith,  Wilson,  32  111.  517;  Rogers  v.  Meyers, 

Bunb.  347;  Howard  v.  Harris,  1  Vern.  68  Id.  92. 
33;  Lamson  v.  Drake,  105  Mass.  504;  si  Spence  Eq.  432. 


CH.  VII.] 


MORTGAGES. 


237 


of  mortgagor  and  mortgagee  is  one  which  is  perfectly  anom- 
alous and  sui  generis;  ^  and  that  while  the  relations  of  vendor 
and  purchaser,  of  principal  and  bailiff,  of  landlord  and  tenant, 
of  debtor  and  creditor,  and  of  trustee  and  cestui  que  trust,  have 
been  used  to  describe  the  relation  of  mortgagor  and  mortgagee, 
yet  by  the  names  of  mortgagor  and  mortgagee  alone  can  that 
relation  be  properly  characterized. 

It  had  been  decided  in  England  that  the  equity  of  redemption 
of  an  estate  in  fee-simple,  prior  to  the  statute  of  3  &  4  Will.  IV., 
c.  104,  was  an  equitable  and  not  a  legal  asset;'  but  this  did  not 
necessarily  determine  the  equitable  nature  of  the  estate  itself; 
for  it  was  pointed  out  by  Vice-Chancellor  Kindersley,  in  Cook 
V.  Gregson,^  that  the  term  equitable  assets  referred  not  to  the 
nature  of  the  property  in  the  hands  of  the  executor,  but  to  the 
remedy  by  which  the  assets  could  be  reached  by  the  creditors 
of  the  decedent.  And  it  was  decided,  in  that  case,'*  that  the 
equity  of  redemption  of  a  sum  of  money  charged  on  land  was 
legal  assets  in  the  hands  of  the  executor— for  he  could  recover 
it  merely  virtute  officii  as  executor,  which  was  said  to  be  the 
test. 

But  that  the  estate  of  the  mortgagor  is  to  be  regarded  in 
England  as  an  equitable  and  not  a  legal  title,  is  evident  from 
the  circumstance  that  a  second  mortgage  of  the  same  estate  is 
always  considered  as  the  transfer  of  an  equitable  and  not  of  a 
legal  title,  and  therefore  is  to  be  subject  to  the  rules  by  which 
the  assignments  of  equitable  interests  are  governed.^ 

In  the  United  States,  however,  the  nature  of  the  mortgagor's 
interest  is  of  a  legal  rather  than  an  equitable  character,  at  all 
events  so  far  as  regards  third  persons.  The  mortgagor  may 
bring  an  action  at  law  to  recover  the  land ;  his  estate  is  liable 
to  dower,  and  may  be  taken  in  execution  for  his  debts.^ 


1  Cholmondeley  v.  Clinton,  2  Jac. 
&  W.  182,  183. 

-  It  is  now  made  a  legal  asset  by 
that  statute. 

^  3  Drewry,  547. 

*  3  Drewry,  547. 

5  See  post,  chap.  VIII.,  Assign- 
ments. Notes  to  Thornbrough  v. 
Baker,  2  Lead.  Cas.  Eq.  *1030  (4th 
Eng.  ed.);  and  to  Marsh  v.  Lee,  1 
Id.  611. 

^  American  note  to  Thornbrough  i'. 


Baker,  2  Lead.  Cas.  Eq.  2007,  2008; 
Brobst  V.  Brock,  10  Wall.  529;  Hutch- 
ins  V.  King,  1  Id.  58;  Wilkins  v. 
French,  20  Me.  Ill;  Jackson  v.  Wil- 
lard,  4  Johns.  R.  41;  Hitchcock  v. 
Harrington,  6  Id.  295;  Ellison  v.  Dan- 
iels, 11  N.  H.  274;  Norwich  v.  Hub- 
bard, 22  Conn.  587;  Carpenter  v. 
Bowen,  42  Miss.  28;  Woods  v.  Hilder- 
brand,  46  Mo.  284;  Hale  v.  Home, 
21  Gratt.  321;  Williams  v.  Beard,  1 
S.  C.  (n.  8.)  324;  Heath  v.  Haile,  45 


238  MORTGAGES.  [PART   I. 

But  as  between  the  mortgagor  and  mortgagee  the  legal  title 
passes  by  the  mortgage,  and  the  mortgagee  has  a  right  to 
recover  in  ejectment.^  This  is  the  English  rule,  and  the  same 
doctrine  has  been  adopted  in  many  of  the  United  States.  In 
others,  however,  the  mortgage  is  considered  as  creating  a  lien 
merely,  and  giving  no  title  upon  which  an  ejectment  can  be 
sustained.' 

Both  in  England  and  in  this  country  the  interest  of  the  mort- 
gagee is  considered  as  personal  property,  and  goes  to  the  ex- 
ecutor and  not  to  the  heir.^ 

163.  Once  a  mortgage,  always  a  mortgage. 

The  equity  of  redemption  would  have  rested  upon  a  very  slen- 
der and  precarious  foundation,  if  it  could  have  been  waived,  sur- 
rendered, or  bargained  away  by  the  mortgagor  at  the  time  of  the 
creation  of  the  mortgage ;  because  the  same  necessity  which  drove 
him  into  the  position  of  borrower,  would  also  have  inevitably 
compelled  him  to  submit  to  any  terms  or  stipulations,  however 
harsh,  which  the  lender  of  the  money  chose  to  insist  upon.  The 
right  to  retleem  would  therefoi'e  have  been  given  up,  in  favor  of 
the  mortgagee,  and  thus  have  been  rendered  of  little  practical 
value,  if  equity  had  not  again  interfered  for  the  protection  of  the 

vS.  Car.  642;  Jackson  v.  Lodge,  36  Jenkins,  8.3  Kj\  .391;  Jordan  ?).  Sayre, 
Cat  28;  Buckley  r.  Daley,  45  Miss.  29  Fla.  100;  Cullen  v.  Minn.  Loan  & 
33S;  White  r.  Rittenmyer,  30Ia.  268;  Trust  Co.,  60  Minn.  6;  Marx  v.  La 
Gorham  r.  Arnold,  22  Mich.  250;  2  Rocque,  27  Oreg.  45;  Barber  r. 
Wash,  on  Real  Prop.  155;  Stewart  v.  Crowell,  55  Neb.  571;  Morrill  v.  Skin- 
Scott,  54  Ark.  187.  ner,   57   Id.   164;   McClory   v.  Ricks, 

1  Unless  it  appears  by  a  stipulation  11  N.  Dak.  38;  Gillett  r.  Romig,  17 
in  the  mortgage  or  otherwise  that  it  is  Okla.  324;  Gerhardt  v.  Ellis,  134  Wis. 
the  intention  of  the  parties  that  the  191. 

mortgagor  shouki  remain  in  posses-  ■"*  Trimm  r.  Marsh,  54  N.  Y.  623; 

sion.     Yoimgman  ?'.  Elmira  Railroad  Thornbrough  v.  Baker,  1  Ch.  Ca.  283; 

Co.,  65  Pa.  285;  Soper  r.  (iuernsey,  71  2  Load.  Cas.  Eq.   1053.     A  convey- 

Id.  224;  Wales  v.  Mellen,  1  Gray,  512;  ance  of  the  mortgaged  premises  by 

Norton  ?'.  Webb,  3()  Me.  270;  Brown  the  mortgagee,  without  assigning  the 

V.  Leach,  Id.  39;  Bank  ?•.  Wallace,  87  debt,   passes  no  estate.     Johnson  i\ 

Me.  28.     As  to  the  rights  of  the  as-  Cornett,    29    Ind.    59;    Hubbard    v. 

signee  of  a  mortgage,  see  (lottrell  r.  Harrison,  38  Id.  341;  4  Kent's  Com. 

Adams,    2    Bisscll,     :].")();    Kibhe    r.  194.     The  interest  of  the  mortgagee 

Dunn,  5  Id.  233..  is  a  chose  in  action  within  the  mean- 

2  2  Wash,  on  Real  Prop.  ion.  See,  ing  of  the  Judiciary  Act.  Hill  r. 
also,  Hogsett  v.  Ellis,  17  Mich.  351;  Winne,  1  Bissell,  277;  Sheldon  v. 
Mann  v.  Falcon,  25  Tex.  271;  Fox  r.  Sill,  8  How.  441;  Smith  v.  Kernochen, 
Wharton,   5  Del.  Ch.   200;  Jones   c.  7  Id.  198. 


I 


CH.  VII.] 


MORTGAGES. 


239 


debtor.  It  was,  consequently,  at  an  early  date  determined,  and 
it  is  a  settled  and  fundamental  doctrine  in  the  law  of  mortgages, 
that  the  mortgagor  cannot  by  any  stipulation  or  agreement  made 
in  the  mortgage  instrument,  or  at  the  date  of  its  execution,  waive 
or  surrender  his  right  to  redeem  within  the  twenty  years. ^  No 
matter  how  rigidly  he  may  attempt  to  bind  himself,  and  no  mat- 
ter how  stringent  may  be  the  contract  by  which  the  equity  of  re- 
demption is  to  be  given  up,  and  the  estate  is  to  become  absolutely 
the  property  of  the  mortgagee  in  the  event  of  a  forfeiture,  a  Court 
of  Chancery  will  utterly  disregard  any  such  agreement,  and  will 
hold  the  mortgagor  still  capable  of  exercising  this  inalienable 
right  of  redeeming  his  property  upon  payment  of  the  principal 
and  interest  of  the  mortgage-debt. 

So  deeply  rooted  is  this  doctrine,  that  it  has  taken  the  shape  of 
a  maxim ;  and  the  immutable  character  of  the  mortgagor's  right 
is  expressed  in  the  emphatic  phrase,  "once  a  mortgage,  alwaj^s  a 
mortgage."  ^   A  man  may,  of  course,  sell  his  equity  of  redemption 


1  Howard  v.  Harris,  1  Vern.  190  (2 
Lead.  Cas.  Eq.  869),  decided  in  1683. 
See,  also,  East  India  Co.  v.  Atkyns, 
Com.  Rep.  349;  Jason  v.  Eyres,  2 
Ch.  Ca.  33;  Spurgeon  v.  Collier,  1 
Eden,  55;  Goodman  v.  Gierson,  2 
Ball  &  B.  278;  Cowdry  v.  Day,  1 
Giff.  315;  Mooney  v.  Byrne,  163 
N.  Y.  86. 

2  See  Newcomb  v.  Bonham,  1  Vern. 
7;  Price  v.  Perrie,  2  Freem.  258;  Wil- 
lett  V.  Winnell,  1  Vern.  488;  Bowen  v. 
Edwards,  1  Rep.  in  Ch.  522;  Marquess 
of  Northampton  v.  Pollock,  45  Ch.  D. 
215;  Salt  v.  Marquis  of  Northampton 
[1892],  App.  Cas.  1 ;  Rice  r.  Noakes  & 
Co.  [1900],  1  Ch.  213;  on  appeal 
[1900],  2  Ch.  445;  in  the  House  of 
Lords  [1902],  A.  C.  24;  Mooney  v. 
Byrne,  163  N.  Y.  86;  Jarrah  Timber 
&  Wood  Paving  Corp.  r.  Samuel 
[1902],  2  Ch.  479;  affd.  [1904]  A.  C. 
323. 

When  a  mortgagor  conveys  the 
mortgaged  property  to  the  mortga- 
gee by  a  deed  absolute  in  form,  the 
right  of  redemption  will  not  be  ex- 
tinguished unless  it  appear  that  no 


advantage  was  taken  of  the  necessi- 
ties of  the  mortgagor  and  that  the 
absolute  conveyance  was  his  volun- 
tary act. 

If  a  mortgagee  agrees,  in  consid- 
eration of  his  mortgagor's  conveying 
the  property  to  him  by  a  deed  ab- 
solute in  form,  that  the  latter  may 
buy  it  within  a  certain  time  at  a 
designated  price,  such  agreement  has 
the  same  effect  as  if  the  mortgagee 
had  agreed  that  the  mortgagor  might 
redeem  the  property  on  the  terms 
mentioned. 

After  the  maturity  of  a  mortgage 
debt  the  mortgagor  conveyed  the 
land  mortgaged  to  the  mortgagee  by 
an  absolute  deed  and  the  mortgagee 
then  signed  a  paper  agreeing  to  rent 
the  land  to  the  mortgagor's  son  and 
giving  an  option  to  buy  the  land 
within  one  year  at  a  fixed  price. 
Afterwards  the  parties  made  another 
agreement  as  to  the  rent,  and  the 
mortgagee-grantee  agreed  that  "  if  he 
wants  to  sell  said  farm "  he  would 
give  the  mortgagor  the  refusal  to 
buy  it  at  the  same  fixed  price.    Upon 


240 


MORTGAGES. 


[part  I. 


the  day  after  the  mortgage  is  created,  if  he  chooses  so  to  do;  ^  but 
ho  cannot,  by  any  form  of  language,  part  with  it  in  favor  of  the 


nor 


mortgagee  at  the  instant  of  the  creation  of  the  mortgage; 
can  he  convey  it  to  the  mortgagee  without  consideration.^ 
^^'here  there  is  no  consideration  for  such  conveyance  "the 
tiansfer  is  of  no  effect,  and  the  equity  remains  in  the  mort- 


gagor, 


''  4 


The  propositions  stated  in  the  preceding  sentence  were  con- 
sidered, in  England,  in  Lisle  v.  Reeve,  decided  by  the  Court  of 
A[)})eal  in  1901.^  In  that  case  it  appeared  that  subsequent  to  the 
date  of  the  mortgage,  an  agreement  was  entered  into  between 


a  bill  by  the  mortgagor  to  enforce  a 
reconveyance  of  the  property,  upon 
the  paynnent  of  the  amount  due  un- 
der the  mortgage,  held,  upon  the 
facts  of  the  case  that  the  mortgagor 
is  entitled  to  redeem  the  property 
and  that  the  agreements  made  at 
the  time  of  the  conveyance  preserved 
this  right;  and  the  evidence  is  ex- 
amined to  ascertain  the  exact  amount 
due  to  the  mortgagee.  Day  r.  Davis, 
101  Maryland,  259. 

1  Trull  V.  Skinner,  17  Pick.  213; 
Remsen  v.  Hay,  2  Edw.  Ch.  535; 
Wynkoop  v.  Cowing,  21  111.  570; 
Hicks  r.  Hicks,  5  G.  »fe  J.  75;  Watson 
V.  Edwards,  105  Cal.  70;  Lisle  r. 
Reeve  [1002],  1  Ch.  71.  Although 
such  a  transaction  is  closely  scruti- 
nizetl  in  equity,  and  its  fairness  must 
distinctly  appear.  Holridge  r.  Gilles- 
pie, 2  Johns.  Ch.  34;  Russell  r.  South- 
ard, 12  How.  154;  Villa  v.  Rodriguez, 
12  Wall.  323;  Liskey  v.  Snyder,  56 
W.  Va.  010;  Webb  v.  Rorke,  2  Sch. 
&  Lef.  673.  See,  also.  Brown  r.  Gaff- 
ney,  28  111.  150;  Baugher  r.  Merry- 
man,  32  Md.  185;  Dougherty  v.  Mc- 
Colgan,  6  Gill  &  J.  275;  Miller  r. 
Green,  37  111.  App.  631;  Moeller  v. 
Moore,  80  Wis.  434,  and  Hall  ?•.  Lewis, 
lis  N.  Car.  509,  where  it  was  held 
that  the  purchase  of  the  mortgagor's 
equity  by  the  mortgagee  is  pre- 
sumed to  be  fraudulent.      Sed  qucere. 


Walker    r.   Farmers'    Bank,    6    Del. 
Ch.  81. 

2  Johnson  v.  Gray,  16  S.  &  R.  365; 
Clark  V.  Henry,  2  Cow.  324;  Stover  v. 
Bounds,  1  Ohio  St.  107;  Pritchard  v. 
Elton,  38  Conn.  434;  McNess  r.  Swa- 
ney,  50  Mo.  391;  Skinner  r.  Miller,  5 
Little,  84;  Heister  r.  Madeira,  3  W.  & 
S.  388;  Wilson  v.  Drumrite,  21  Mo. 
325;  Rogan  v.  Walker,  1  Wis.  527; 
Henry  r.  Clark,  7  Johns.  Ch.  40;  s.  c. 
2  Cow.  324;  Jaques  v.  Weeks,  2  Watts, 
261,  277;  Woods  v.  Wallace,  22  Pa. 
171;  Robinson  v.  Farelly,  16  Ala. 
472;  Venderhaise  v.  Hugues,  2  Beas. 
410;  Pierce  r.  Robinson,  13  Cal.  125; 
Rankin  v.  Mortimere,  7  Watts,  372; 
Clark  V.  Condit,  18  N.  J.  Eq.  358; 
Jackson  r.  Lynch,  129  111.  72.  See 
Glendenning  r.  Johnston,  33  Wis. 
347,  for  an  exceptional  case.  Notes 
to  Thornbrough  i".  Baker,  supra;  2 
Wash.  Real  Prop.  67. 

3  If  a  mortgagee  uses  the  power 
his  mortgage  has  given  him  to  ob- 
tain the  equity  of  redemption  for 
less  than  its  value,  a  court  of  equity 
will  hold  such  transaction  a  mort- 
gage and  will  permit  the  mortgagor 
to  redeem.  Noble  r.  Graham,  140 
Ala.  413. 

*  Per  Taft,  C.  J.,  in  United  States 
V.  Flint  &  P.  M.  Ry.  Co.,  37  C.  C.  A. 
163. 

5  Lisle  L'.  Reeve  [1902],  1  Ch.  64,  71. 


CH.  VII.]  MORTGAGES.  241 

the  parties  whereby  the  mortgagee  was  to  have  (in  substance)  an 
option  to  purchase  a  moiety  of  the  mortgaged  property  at  a  price 
equal  to  the  loan.  At  the  date  of  this  subsequent  agreement  the 
debt  had  not  matured  and  the  legal  right  to  redeem  consequently 
still  existed.  During  the  currency  of  the  option  the  mortgagee 
(jilaintiff)  elected  to  exercise  it,  but  the  mortgagor  (defendant) 
refused  to  convey.  The  mortgagee  then  brought  this  action  for 
specific  performance.  The  Lords  Justices  of  Appeal  held  (differ- 
ing from  the  reasons  of  the  court  below,  although  affirming  the 
judgment)  that  if  the  mortgage  and  the  subsequent  agreement 
were  to  be  regarded  as  one  transaction,  the  contract  might  have 
been  objectionable  as  containing  a  provision  which  clogged  the 
equity  of  redemption;  but  that  inasmuch  as  the  option  to  buy 
was  given  a^ter  the  execution  of  the  mortgage,  there  was  nothing 
to  prevent  the  enforcement,  in  equity,  of  such  a  stipulation.  The 
case  is  also  interesting  and  instructive  because  although  the 
court  below  had  expressed  the  view  that  an  equity  of  redemption 
did  not  exist,  in  any  case,  in  which  there  had  not  been  a  previous 
legal  right  to  redeem,  and  that  where  no  such  legal  right  had  ex- 
isted, or  had  been  put  an  end  to  during  its  currency  by  the  satis- 
faction of  a  condition,  there  was  no  room  for  the  application  of 
the  maxim  "once  a  mortgage  always  a  mortgage,"  yet  this 
opinion  was  repudiated  by  the  Court  of  Appeal  and  the  decision 
put  upon  the  ground  already  stated. 

Moreover,  equity  does  not  allow  the  privileges  of  a  mortgagor 
to  be  clogged  by  amj  stipulations  which  are  inconsistent  with  his 
character  as  mortgagor.  It  was  said  by  an  English  judge  many 
years  ago  that  "a  man  shall  not  have  interest  for  his  money  and  a 
collateral  advantage,  besides,  for  the  use  of  it,  or  clog  the  re- 
demption with  any  by-agreement;"  ^  and  this  rule  has  always 
been  approved  and  acted  on.^  Thus,  agreements  that  if  interest 
is  not  paid  at  the  end  of  the  year  it  is  to  be  converted  into  princi- 
pal; ^  that  a  commission,  or  a  bonus,  would  be  paid  in  case  the 
mortgage  should  be  paid  off ;  ^  that  the  mortgagee  shall  be  re- 

1  Jennings  v.  Ward,  2  Vern.  520.  3  Chambers  v.  Goldwin,  9  Ves.  271. 

2  James  r.  Kerr,  40  Ch.  D.  459;  <  Chappie  v.  Mahon,  5  Ir.  Eq.  225; 
Marquess  of  Northampton  v.  Pollock,  James  v.  Kerr,  40  Ch.  D.  459.  See 
45  Id.  215;  Santley  i'.  Wilde  [1899],  Potter  v.  Edwards,  26  L.  J.  Ch.  468, 
1  Ch.  747;  Noakes  &  Co.,  Ltd.,  v.  and  Mainland  v.  Upjohn,  41  Ch.  D. 
Rice  [1902],  A.  C.  24;  Bradley  v.  140,  for  exceptional  cases  the  other 
Carritt  [1903],  A.  C.  253.  See  Macau-  way;  also,  Broad  v.  Selfe,  11  W.  R. 
ley  V.  Smith,  132  N.  Y.  524.  1036. 

16 


242 


MORTGAGES. 


[part  I. 


ceiver  of  the  rents  with  a  commission/  and  the  hke,  have  been 
held  invahd.'  In  Noakes  &  Co.,  Ltd.,  v.  Rice,'  a  mortgagor  was 
held  entitled  to  redeem  the  mortgaged  premises  free  and  dis- 
charged of  a  covenant  in  the  mortgage  not  to  sell  malt  liquors 
except  those  purchased  from  the  mortgagee;  and  Lord  Alver- 
stone,  M.R.,  fully  approved  the  rule  in  Jennings  v.  Ward  and  dis- 
tinguished Santley  v.  Wilde.^ 

154.  Distinction  between  mortgages  and  conditional  sales. 

The  care  which  equity  takes  to  call  into  being  and  preserve  the 
right  of  redemption  is  shown  in  the  tendency  which  exists  in 
Courts  of  Chancery  (and  in  courts  of  law  where  equitable  doc- 
trines are  recognized)  to  construe  alleged  conditional  sales  to  be, 
in  fact,  mortgages.  A  sale  coupled  with  a  stipulation  or  condition 
that  the  vendor  shall  be  at  liberty  to  buy  back  the  property 
within  a  certain  time,  is  not  forbidden  by  law,  and  when  such  a 
contract  is  made  the  parties  must  abide  by  it,  and  the  original 
vendor  has  no  right  to  insist  upon  a  resale  to  himself  at  any  day 
after  the  stipulated  time."  But  when  the  transaction  is  in  sub- 
stance a  security  for  a  debt,  and  when  there  is  sufficient  evidence 
to  show  that  that  was  the  real  intention  of  the  parties,  it  is  obvious 
that  the  nature  of  the  contract  is  that  of  a  mortgage,  and  not  of  a 
sale  with  the  privilege  of  buying  back.^  The  mere  fact,  therefore, 
that  the  transaction  has  assumed  the  shape  of  a  conditional  sale 
will  not  be  allowed  to  alter  the  rights  of  the  parties,  or  deprive 
the  party  who  is  in  fact,  though  perhaps  not  in  name,  a  mort- 
gagor, of  his  equity  of  redemption.  The  difficulty  in  most  cases 
is  to  ascertain  what  the  actual  nature  of  the  transaction  was  in- 
tended by  the  parties  to  be.  Each  case  must,  of  course,  to  a  great 
extent,  depend  upon  the  circumstances  peculiar  to  itself:  but 


1  Chappie  V.  Mahon,  5  Ir.  Eq.  225. 

2  Note  to  Thornbrough  v.  Baker, 
v<  sup. 

3  [1902]  A.  C.  24. 

*  [1899]  2  Ch.  474. 

5  See  Buse  v.  Page,  32  Minn.  111. 
Where  there  is  simply  a  deed  with  a 
bond  for  reconveyance  in  payment  of 
a  certain  sum,  the  transaction  will  be 
considered  prima  facie  a  conditional 
sale,  not  a  mortgage.  Id.;  Sullivan 
V.  Woods,  5  Ariz.  196;  Fabrique  v. 
Mining  Co.,  69  Kan.  733. 


*>  See  Danzeisen's  Appeal,  73  Pa. 
65;  Huoncker  v.  Merkey,  102  Id.  465; 
Mclntier  v.  Shaw,  6  Allen,  83;  Sweet 
V.  Parker,  22  N.  J.  Eq.  453;  Clark  v. 
Lyon,  46  Ga.  202;  Wilson  v.  Patrick, 
34  la.  362;  Bigler  v.  Jack,  114  Id. 
667;  Moore  v.  Wade,  8  Kan.  381; 
Hunter  v.  Hatch,  45  111.  178;  Church 
V.  Cole,  36  Ind.  35;  Davis  v.  Clay,  2 
Mo.  161 ;  Phoenix  v.  Gardner,  13  Minn. 
430;  Yates  r.  Yates,  21  Wis.  473; 
Cotterell  r.  Long,  20  Ohio,  464;  Ben- 
nett V.  Union  Bank,  5  Humph.  612. 


CH.  VII.] 


MORTGAGES. 


243 


there  are  certain  indicia  of  intention  which  frequently  occur,  and 
which  when  they  do  exist  are  ahvays  looked  to.  Among  these  are 
the  sufficiency  or  insufficiency  of  the  price  paid ;  whether  or  not 
existing  securities  or  evidences  of  indebtedness  were  given  up 
or  cancelled;  whether  there  was  any  obligation  to  repay  the 
purchase-money;  and  whether  the  grantee  entered  into  imme- 
diate possession  of  the  premises.^ 

Whatever  difficulty  there  may  be  in  determining  the  nature 
of  any  particular  transaction,  two  general  rules  seem  to  be  estab- 
lished by  the  authorities:  first,  that  if  the  agreement  is  in  sub- 
stance a  mortgage,  its  form  cannot  deprive  the  debtor  of  his 
equity  of  redemption ;  ^  and  secondly,  that  courts  will  lean  very 
strongly  towards  constming  the  agreement  to  be  a  mortgage 
rather  than  a  conditional  sale.^ 

Where,  however,  it  plainly  appears  that  a  conditional  sale  was 
intended,  the  parties  will  be  held  to  their  bargain."* 

155.  Absolute  deed  may  be  shown  to  be  a  mortgage. 

In  favor  of  the  equity  of  redemption  a  Court  of  Chancery  will 


1  See  note  to  the  case  of  Haines 
V.  Thompson,  11  Am.  Law.  Reg. 
(N.  8.)  680;  70  Pa.  434.  See,  also, 
Bridges  r.  Linder,  60  la.  190;  Vincent 
V.  Walker,  86  Ala.  333;  Rose  r. 
Gandy,  137  Ala.  329;  Franklin  r. 
Ayre,  22  Fla.  654;  Wolfe  v.  McMillan, 
117  Ind.  587;  Cobb  v.  Day,  106  Mo. 
278;  Fisher  v.  Green,  142  111.  80. 

2  Banning  r.  Sabin,  51  Minn.  132 

3  Cornell    v.    Hall,    22   Mich.    377 
Watkins  v.  Gregory,  6  Blackf.  113 
Peterson   v.    Clark,     15   Johns.    205 
Rice  r.  Rice,  4  Pick.  349;  Hughes  v 
Sheaff,  19  la.  342;  Wilson  v.  Patrick, 
34  Id.  370;  Weathersly  v.  Weathersly, 
40  Miss.  469;  Wing  v.  Cooper,  37  Vt. 
179.     See,  also,  Kerr  v.  Gilmore,  6 
Watts,   405;    Heister   r.    Madeira,    3 
W.  &  S.  384;  Ruffier  v.  Womack,  30 
Tex.   332;   Robinson   v.  Willoughby, 
65  N.  C.  520;  Carpenter  v.  Snelling,  97 
Mass.  .452;  Flagg  v.  Mann,  2  Sumn. 
486;    Colwell    v.    Woods,    3    Watts, 
188;   Kunkle  v.  Wolfersberger,  6  Id. 
126;  Rankin  i;.  Mortimere,  7  Id.  372; 


Todd  V.  Campbell,  32  Pa.  250;  Kel- 
lum  V.  Smith,  33  Id.  158;  Houser  v. 
Lamont,  55  Id.  311;  Halo  v.  Schick, 
57  Id.  319;  Spering's  Appeal,  60  Id. 
199;  McClurkan  v.  Thompson,  67  Id. 
305;  Sweetzer's  Appeal,  71  Id.  264. 
See,  also,  PajTie  v.  Patterson,  77  Id. 
134,  for  a  case  which  is  to  be  distin- 
guished from  the  above.  Notes  to 
Thornb rough  v.  Baker,  2  Lead.  Cas. 
Eq.  1046  (4th  Am.  ed.);  2  Wash,  on 
Real  Prop.  62,  64;  King  v.  Greves, 
42  Mo.  App.  168;  Kahau  v.  Booth, 
10  Hawaii,  332. 

^  Conway's  Ex'rs  v.  Alexander,  7 
Cranch,  218;  Haines  v.  Thompson,  70 
Pa.  434;  Pearson  v.  Seay,  35  Ala. 
612.  See,  also,  Pitts  v.  Cable,  44 
111.  103;  Carr  r.  Rising,  62  Id.  14; 
Turner  v.  Kerr,  44  Mo.  429;  Cornell 
V.  Hall,  22  Mich.  377;  Henley  v. 
Houghtaling,  41  Cal.  22;  Hanford 
V.  Blessing,  80  111.  188;  Kunert  v. 
Strong,  103  Wis.  70;  Keough  v. 
Meyers,  43  La.  Ann.  952. 


244 


MORTGAGES. 


[part  I. 


allow  a  deed,  absolute  on  its  face,  to  be  shown  to  be  a  mortgage. 
This  principle  is  recognized  in  nearly  all,  if  not  all,  the  states  of 
the  Union  (except,  of  course,  in  those  in  which  the  law  has  been 
changed  by  statute),^  and  is  settled  by  a  host  of  decisions. ^  Parol 
evidence  is  admissible  in  such  cases  in  most  of  the  states  of  the 


•  See,  in  Pennsylvania,  the  Act  of 
June  8,  1881  (P.  L.  84),  and  Hart- 
ley's Appeal,  103  Pa.  23;  Sankey  v. 
Hawley,  118  Id.  30;  O'Donnell  v. 
Vandersaal,  213  Pa.  551. 

Act  Pa.  June  8,  1881  (P.  L.  84), 
which  provides  that  a  deed  absolute 
on  its  face  shall  not  be  reduced  to  a 
mortgage  except  by  a  defeasance  in 
writing  signed,  sealed,  and  delivered 
at  the  time  and  recorded  within  60 
days,  does  not  render  void  or  inef- 
fective an  unrecorded  declaration  of 
trust  executed  by  an  absolute  grantee 
to  the  grantor,  by  which  it  declared 
that  it  held  the  property  in  trust  for 
certain  purposes  plainly  expressed 
therein,  merely  because  one  of  such 
purposes  was  to  sell  lots  from  the 
property  and  from  the  proceeds  to 
repay  itself  certain  advances;  and 
the  trustee  cannot  treat  such  in- 
strument as  a  defeasance  merely  and 
assert  its  legal  title  to  avoid  the 
execution  of  the  trust.  Linton  v. 
Safe  Deposit  Co.,  147  Fed.  Rep.  824. 

2  Among  the  authorities  upon  this 
point  are  Villa  v.  Rodriguez,  12  Wall. 
323;  Risher  v.  Smith,  131  U.  S. 
clvi,  Appendix;  Sweet  v.  Parker,  22 
N.  J.  Eq.  453;  Horn  v.  Keteltas,  46 
N.  Y.  605;  Odenbaugh  v.  Bradford,  67 
Pa.  96;  Swcetzcr's  Appeal,  71  Id.  273; 
Gaines  i\  Brockerhoff,  1.36  Id.  197; 
French  v.  Burns,  35  Conn.  359;  Wing 
V.  Cooper,  37  Vt.  179;  Tedens  v. 
Clark,  24  111.  .\pp.  510;  Campbell  v. 
Dearborn,  109  Mass.  1.30;  Pierce  v. 
Robinson,  13  Cal.  116;  Heath  ?•.  Wil- 
liams, 30  Ind.  495;  Roberts  ?'.  Mc- 
Mahan,  4  Greene  (la.),  34;  Zuver  r. 
Lyons,  40  la.  510;  Skinner  v.  Miller,  5 
Litt.  86;  Moore  v.  Wade,  8  Kan.  380; 


Swetland  r.  Swetland,  3  Mich.  482; 
Jones  V.  Jones,  20  S.  D.  632;  Duerden 
V.  Solomon,  33  Utah,  468.  Alabama 
case,  see  Reeves  v.  Abercrombie,  108 
Ala.  535;  Fridley  v.  Somerville,  60 
W.  Va.  272;  Smith  v.  Pfluger,  126 
Wis.  253;  Emerson  v.  Atwater,  7  Id. 
12;  Carr  v.  Carr,  52  N.  Y.  251;  Brown 
V.  ClifTord,  7  Lans.  46;  Fessler's  Ap- 
peal, 75  Pa.  483;  Nichols  v.  Cabe,  3 
Head,  93;  Wilcox  v.  Bates,  26  Wis. 
465;  McMillan  v.  Bissell,  63  Mich.  66; 
Anglo-California  Bank  v.  Cerf,  147 
Cal.  384;  Cassem  v.  Heustis,  201  111. 
208;  Clark  v.  Seagraves,  186  Mass. 
430;  Carveth  v.  Winegar,  133  Mich. 
34;  Evans  v.  Thompson,  89  Minn. 
202;  Stett  v.  Lumber  Co.,  96  Minn. 
27;  Duell  v.  Leslie,  207  Mo.  658;  Gro- 
gan  I'.  Valley  Trading  Co.,  30  Mont. 
229;  Tannyhill  v.  Pepperl,  70  Neb. 
31;  Kramer  v.  Wilson,  49  Or.  333. 
A  legal  or  equitable  interest  in  land 
at  the  time  a  deed  was  made  is  es- 
sential to  the  right  to  redeem  on  the 
theory  the  deed  was  intended  as  a 
mortgage.  Conkey  v.  Rex,  212  111. 
444.  One  who  comes  into  equity  to 
have  a  deed  and  contract  declared 
to  be  a  mortgage  must  be  prepared 
to  do  equity  and  will  be  required  to 
pay  legal  interest  although  the  con- 
tract rate  was  usurious.  Malone  v. 
Danforth,  137  Mich.  228.  "  Every  in- 
strument purporting  to  be  an  abso- 
lute or  qualified  conveyance  of  real 
estate  or  any  interest  therein  but 
intended  to  be  defeasible,  or  as  secu- 
rity for  the  payment  of  money,  shall 
be  deemed  a  mortgage,  and .  must 
be  recorded  and  foreclosed  as  such." 
Okla.  Ses.sion  Laws  1897,  §  12,  chap. 
8;.Ym0ling  v.  Redwine,  12  Okla.  64. 


CH.  VII.] 


MORTGAGES. 


245 


Union,  for  the  Statute  of  Frauds  is  not  applicable;  ^  but  it  must 
be  very  clear.^ 

The  ground  upon  which  this  doctrine  is  placed  by  Chancellor 
Kent  is  that  of  fraud,  accident,  or  mistake;  and  according  to  that 
view,  where  neither  of  these  elements  exists,  the  absolute  deed 
cannot  be  shown  to  be  a  mortgage.^  But  it  has  been  decided  in 
the  Supreme  Court  of  the  United  States,  that  where  a  deed  is 
intended  to  operate  as  a  mortgage,  it  would  be  a  fraudulent  act  on 
the  part  of  the  grantee  to  insist  upon  its  being  absolute,  and  on 
that  ground  the  grantor  would  be  entitled  to  relief;  ^  and  this  is 
now  the  rule  in  New  York,^  and  is  the  more  generally  accepted 
doctrine  in  this  country.^ 

166.  Foreclosure  suits. 

Equity,  having  thus  interposed  so  justly  and  so  decidedly  in 
favor  of  the  mortgagor,  was  now  ready  to  lend  its  assistance  to 
the  mortgagee,  who,  in  his  turn,  might  have  been  subjected  to 
great  inconveniences  if  the  Court  of  Chancery  had  not  come  to  his 
relief.  Because,  for  a  man  to  hold  possession  of  an  estate,  and 
yet  to  be  all  the  time  at  the  risk  of  being  deprived  of  the  enjoy- 


1  Maffitt's  Adm'r  v.  Rynd,  69  Pa. 
387;  Ballentine  v.  White,  77  Id.  25; 
Sanders  v.  Beck,  92  Ind.  49;  Ahem  v. 
McCarthy,  107  Cal.  382;  Burnett  v. 
Wright,  135  N.  Y.  543;  Jennings  v. 
Deramon,  194  Mass.  108;  Blackstock 
V.  Robertson,  42  Colo.  472.  Missis- 
sippi Code  of  1892,  §  4233,  provides 
that  a  conveyance  or  other  writing 
absolute  on  its  face,  where  the  maker 
parts  with  the  possession  of  the 
property  conveyed  by  it,  shall  not 
be  proved,  at  the  instance  of  any  of 
the  parties,  by  parol  evidence,  to  be 
a  mortgage  only,  unless  fraud  in  its 
procurement  be  the  issue  to  be  tried. 
Armstrong  v.  Owens,  83  Miss.  10. 

2  See  2  Washburn  on  Real  Prop- 
erty, 50  et  seq.;  McGinity  v.  McGinity, 
63  Pa.  45;  Plumer  v.  Guthrie,  76  Id. 
455;  Becker  v.  Howard,  75  Wis.  415; 
Clinton  Hill  Lumber  Co.  v.  Strieby, 
52  N.  J.  Eq.  576;  Bobb  v.  Wolff,  148 
Mo.  335;  Tennessee  Coal,  etc.,  Co.  v. 
Wheeler,    125   Ala.    538;   Rankin    v. 


Rankin,  216  111.  132;  Little  v.  Braun, 
11  N.  D.  410;  Holladay  v.  Willis,  101 
Va.  274;  Betts  v.  Betts,  132  Iowa,  72. 
"  Must  be  clear,  certain,  satisfactory, 
unequivocal,  trustworthy  and  con- 
vincing, in  short,  the  case  must  be 
made  out  beyond  a  reasonable 
doubt."  Butsch  v.  Smith,  40  Colo.  64. 

3  See  Stevens  v.  Cooper,  1  Johns. 
Ch.  245,  following  the  rule  in  Irnham 
V.  Child,  1  Bro.  Ch.  C.  92;  Norris  v. 
McLam,  104  N.  C.  159;  Munford  v. 
Green's  Adm'r,  103  Ky.  140. 

*  Babcock  v.  Wyman,  19  How.  289; 
Morgan  v.  Shinn,  15  Wall.  105;  Rus- 
sell V.  Southard,  12  How.  139;  Watts 
V.  Kellar,  12  U.  S.  App.  274.  See 
Adams  v.  Adams,  51  Conn.  544;  Mc- 
Pherson  v.  Hayward,  81  Me.  329;  2 
Wash.  Real  Prop.  58,  and  the  Ameri- 
can note  to  Woollam  v.  Hearn,  2 
Lead.  Cas.  Eq.  673  et  seq.,  where  the 
subject  is  discussed  at  length. 

5  Brown  v.  ClifTord,  7  Lans.  46. 

8  See  Jones  on  Mortgages,  §  322. 


246  MORTGAGES.  [PART  I. 

ment  of  it  at  the  option  of  the  debtor,  and  whenever  it  might 
suit  the  convenience  of  the  latter  to  pay  the  debt,  was,  it  is  plain, 
to  hold  land  by  a  very  precarious  and  uncertain  tenure.  The 
mortgagee  could  not  improve  beyond  the  necessary  repairs  with- 
out being  liable  to  have  the  improved  property  taken  away  from 
him  at  any  moment.^ 

It  was,  therefore  decided  in  equity  that  a  bill  would  be  enter- 
tained for  the  purpose  of  foreclosing  (as  it  was  termed)  the  mort- 
gagor's equity  of  redemption.  By  the  decree  made  under  this 
bill  a  new  day  was  fixed,  on  or  before  which  the  debtor  was  re- 
quired to  pay  the  debt,  and  if  he  failed  to  meet  his  obligation  at 
the  new  date  thus  specified,  his  right  to  redeem  was  forever  fore- 
closed, and  his  estate  absolutely  forfeited  to  the  mortgagee.^ 

It  required  one  step  more  to  render  the  remedy  entirely  fair 
to  both  parties.  This  was  effected  in  England  by  the  statute 
15  &  16  Vict.,  c.  86,  under  which  a  sale  of  the  mortgaged  premises 
can  be  made  in  a  foreclosure  suit.  So  much  of  the  proceeds  as  is 
necessary  to  pay  to  the  mortgagee  his  debt,  interest,  and  costs  is 
devoted  to  that  purpose,  and  the  balance  is  handed  to  the  mort- 
gagor. The  mortgagee's  remedy  in  many  of  the  United  States  is 
prescribed  and  regulated  by  statute,  and  in  some  of  them  a  fore- 
closure is  accomplished  by  petition  or  scire  facias.  In  others,  the 
proceedings  by  bill  in  equity  are  retained  being  in  some  cases, 
however,  slightly  modified  by  statute;  ^  and  in  nearly  all  of  them 
the  proceedings  in  foreclosure  result  in  a  sale  of  the  mortgaged 
premises.'* 

It  may  be  observed,  also,  that  cases  may  arise  in  which  the 
method  of  foreclosure  provided  by  statute  may  not  be  adequate 
to  settle  all  the  equities,  and  that  where  this  is  so,  chancery  will 
entertain  jurisdiction.-'^  It  has,  moreover,  been  decided  that  the 
insertion  of  a  power  of  sale  in  the  mortgage  does  not  supersede 
the  remedy  by  foreclosure  bill.^ 

1  See  post,  §  157.  mortgagee.     Reference  may  be  had 

2  See  Clark  r.  Reyburn,  8  Wall.  323,  to  Wash,  on  Real  Prop.,  Book  I., 
and  Morgan's  Co.  v.  Texas  Cent.  R'y  Chap.  XVI.,  §  X.;  and  to  Jones  on 
Co.,  137  U.  S.  171;  Moulton  v.  Cor-  Mortgages,  Chap.  XXVII.  et  seq. 
nish,  138  N.  Y.  133;  Denton  v.  On-  <  State  v.  Campbell,  5  S.  D.  636. 
tario  County  Nat.  Bk.,  150  Id.  s  Draj'ton  v.  Chandler,  93  Mich. 
126.  383. 

3  It  would  be  impossible  to  notice  «  Clark  v.  Jones,  93  Tenn.  639;  Gi- 
the  statutory  provisions  in  the  differ-  rard  Trust  Co.  v  Avonmore  Land 
ent  states  as  to  the  remedies  of  the  Co.,  221  Pa.  52. 


CH.  VII.] 


MORTGAGES. 


247 


157.  Rights  and  duties  of  mortgagor  and  mortgagee. 

During  the  exietence  of  the  mortgage  there  are  certain  other 
rights  of  the  parties  which  have  not  yet  been  noticed,  but  which 
ought  to  be  spoken  of. 

And,  in  the  first  place,  as  to  the  mortgagor,  it  nmst  be  remem- 
bered that  if  he  is  suffered  to  remain  in  possession,  he  remains  in 
as  owner,  and  is  not  accountable  for  the  rents  and  profits,'  and 
they  are  liable  for  his  debts.  As  long  as  he  is  permitted  by  the 
mortgagee  to  retain  the  actual  enjoyment  of  the  estate,  his  rights 
of  ownership  are  the  same  as  those  of  any  other  holder  of  a  fee ; 
subject,  however,  to  this  qualification — he  cannot  commit  waste. ^ 

If  a  mortgagor  is  wasting  the  land  so  as  to  affect  the  security  of 
the  mortgagee,  chancery  will  interfere  on  a  bill  filed  by  the  latter 
for  the  purpose  of  restraining  this  inequitable  use  of  his  estate  on 
the  part  of  the  mortgagor.^ 

On  the  other  hand,  a  court  of  equity  will  not  only  restrain  the 
mortgagee  when  in  possession  from  conmiitting  waste,  but  will 
also  hold  him  accountable  for  the  rents  and  profits.  His  posses- 
sion not  being  a  tortious  one,  he  is,  of  course,  not  considered 
liable  for  all  that  he  might  have  received — he  is  only  answerable 
for  all  that  he  has  actually  received,  or  could  have  collected  with 
reasonable  diligence.  He  is  not  to  be  held  to  the  strictest  ac- 
countability on  the  one  hand,  and,  on  the  other,  he  is  not  per- 
mitted to  be  entirely  negligent  or  wasteful  in  the  management  of 
the  estate.  And  he  is  responsible  to  the  same  extent  when  he  has 
assigned  the  mortgage,  because  it  is  considered  his  duty  to  see 
that  none  but  a  proper  person  is  allowed  to  enter  into  possession 
of  the  land.'' 


1  See  Galveston  Railroad  v.  Cow- 
drey,  11  Wall.  459;  Gilman  v.  111.  & 
Miss.  Tel.  Co.,  91  U.  S.  617;  American 
Bridge  Co.  v.  Heidelbach,  94  Id.  800; 
Teal  V.  Walker,  111  Id.  242;  Childs  r. 
Hurd,  .32  W.  Va.  66;  Leach  r.  Curtin, 
123  N.  C.  85;  Barron  v.  Whiteside,  89 
Md.  448. 

2  2  Spence  Eq.  648;  1  Wash,  on 
Real  Prop.,  Book  I.,  Chap.  XVI., 
§  v.;  Jones  on  Mortgages,  §§  670  et 
seq. 

'^  Jones  on  Mortgages,  §§  684  et  seq. 

*  Upon  the  subject  of  the  extent  of 

the  accountability  of  a  mortgagee  in 


possession,  and  the  manner  of  taking 
the  account,  see  Sanders  v.  Wilson,  34 
Vt.  321;  Miller  v.  Lincoln,  6  Gray, 
5.56;  Ruckman  v.  Astor,  9  Paige,  517; 
Bell  V.  The  Mayor  of  New  York,  10 
Id.  73;  Hubbell  v.  Moulson,  53  N.  Y. 
225;  Strong  i\  Blanchard,  4  Allen, 
538;  Richardson  v.  Wallis,  5  Id.  78; 
Hubbard  v.  Shaw,  12  Id.  120;  Boston 
Iron  Co.  V.  King,  2  Cush.  400;  Shaef- 
fer  V.  Chambers,  2  Hals.  Ch.  548; 
Rawlings  v.  Stewart,  1  Bland,  22, 
note;  Breckenridge  v.  Brooks,  2  A. 
K.  Marsh.  339;  Powell  v.  Williams,  14 
Ala.  476;  Anthony  v.  Rogers,  20  Mo. 


248  MORTGAGES.  [PART    I. 

168.  Tacking. 

One  of  the  consequences  of  the  fact  that  a  mortgage  is  in  form 
a  conveyance  of  the  legal  title  from  the  mortgagor  to  the  mort- 
gagee, was  that  a  second  mortgagee  could  acquire  only  an  equita- 
ble title  to  the  mortgaged  property;  in  other  words,  he  was 
merely  an  equitable  encumbrancer.  Now,  in  case  an  equitable 
encumbrancer  gets  in  the  legal  title,  then,  unless  there  is  some 
countervaihng  equity  to  deprive  him  of  this  advantage,  his  posi- 
tion will  be  superior  to  that  of  his  fellow-encumbrancers,  in 
obedience  to  the  equitable  maxim  that  where  equities  are  equal 
the  law  shall  prevail.  This  is  the  origin  of  the  doctrine  of  tack- 
ing— which  exists  in  the  law  of  mortgages  in  England,  but  which 
has  rarely  been  adopted  in  the  United  States.^  The  doctrine  may 
be  best  explained  by  an  example.  Suppose  there  are  three  mort- 
gages, all  of  different  date.  The  mortgagee  first  in  point  of  time 
will  hold  the  legal  title,  the  other  two  will  be  simply  equitable 
encumbrancers.  Now,  if  the  third  mortgagee  buys  in  the  first 
mortgage,  so  as  to  become  the  owner  of  the  legal  title,  he  has  a 
right  to  tack  the  two  mortgages  together,  and  realize  the  whole 
amount  due  on  both,  prior  to  the  second  mortgagee,  whose  se- 
curity is  thus,  as  it  were,  squeezed  out  between  the  first  and  third 
mortgage.-  But  this  can  only  be  allowed  in  those  cases  in  which 
the  third  mortgagee  had  no  notice  of  the  existence  of  the  second 
mortgage  at  the  time  he  took  his  mortgage.  If  he  became  mort- 
gagee with  notice  at  the  time  of  the  second  mortgage,  he  will  not, 
under  these  circumstances,  be  allowed  to  protect  himself  by  get- 
ting in  the  first  mortgage  to  the  prejudice  of  the  second  mort- 
gagee.^   But  notice  of  the  existence  of  the  second  mortgage,  after 


281;  Gilman  v.  Wills,  66  Me.  273 
Barnard  v.  Jennison,  27  Mich.  2.30 
Montgomery  v.  Chadwick,  7  la.  114 
Milliken     v.     Bailev,     61     Me.     316 


he  might  have  received  may  be  modi- 
fied if  he  supposed  himself  to  have 
an  absolute  title.  Parkinson  v.  Han- 
bury,   L.  R.  2  H.   L.    1 ;  Cookes  v. 


Moore  v.  Titman,  44  111.  367;  Strang  Culbertson,  9  Nev.  199. 
V.  Allen,  Id.  428;  Harper  v.  Ely,  70  i  "No  principle  analogous  to  tack- 
Id.  581;  Caldwell  v.  Hall,  49  Ark.  ing  has  ever  been  recognized  in  this 
508;  Jackson  v.  Lynch,  129  111.  72;  state."  Fritch  v.  Bank,  191  Pa.  289. 
Brown  v.  Sav.  Bank.  148  Mass.  300;  2  See  notes  to  Marsh  v.  Lee,  1  Lead. 
Murdock  v.  Clarke,  90  Cal.  427;  Grib-  Cas.  Eq.  615  (4th  Eng.  ed.),  where 
bel  1;.  Brown,  202  Pa.  15;  Krutz  v.  this  subject  is  discussed  at  length. 
Gardner,  25  Wash.  .396;  2  Wash.  See,  also,  Hosking  v.  Smith,  13  App. 
on  Real  Prop.  204-216;  Jones  on  Cas.  582,  and  Taylor  v.  Russell 
Mortgages,  §1114.  The  accounta-  [1892],  App.  C.  244. 
bility  of  a  mortgagee  for  rents  which  3  1  Lead.  Cas.  Eq.  621. 


CH.  VII.] 


MORTGAGES. 


249 


he  has  advanced  the  money,  cannot  then  deprive  him  of  the  right 
to  buy  in  the  legal  title,  and  protect  himself  thereby.^-  A  junior 
encumbrancer,  if  he  finds  that  he  is  likely  to  be  postponed  to  a 
prior  lien,  of  which  he  had  no  notice  when  he  became  mortgagee, 
may  protect  himself  by  getting  in  the  legal  title,  and  using  it  (as 
has  been  said)  as  a  plank  in  a  shipwreck.^ 

So,  also,  if  a  mortgagee  lends  a  further  sum  on  another  mort- 
gage, he  will  be  allowed  to  tack  the  last  mortgage  to  the  first,  and 
cut  out  a  second  encumbrancer. 

The  right  to  tack  does  not  exist  in  favor  of  judgment-creditors, 
or  of  any  one  except  those  who  have  advanced  their  money  on  the 
credit  of  the  land.  A  first  mortgagee  may,  however,  tack  a  judg- 
ment to  his  mortgage.^ 

Somewhat  similar  to  the  doctrine  of  tacking  is  that  of  (what 
may  be  termed)  consolidation  of  mortgages,  by  which  a  mort- 
gagee, when  tendered  the  sum  due,  has  a  right  to  insist  that  the 
mortgagor  shall,  at  the  same  time,  redeem  a  debt  secured  upon 
another  estate,  or,  in  other  words,  say  to  him,  "  pay  off  both  debts 
or  you  shall  not  redeem  one."  "* 


159.  Mortgages  to  secure  future  advances. 

The  doctrine  of  tacking  (which  is  an  extremely  harsh  and  in- 
equitable one)  does  not  exist  to  any  extent  in  the  United  States.^ 
A  rule  apparently  analogous  may,  however,  be  found  in  those 
eases  where  a  mortgage  is  given  to  secure  future  advances,  and 
where  the  mortgagee  is  allowed  to  recover  sums  subsequently 
advanced,  as  against  a  mesne  mortgagee. 

The  general  definition  of  a  mortgage  given  above,  supposes 
that  the  debt  intended  to  be  secured  was  contemporaneous  with, 
or  prior  to,  the  mortgage.     Mortgages,  however,  are  sometimes 


1  Id.  616. 

2  By  Lord  Hale  in  Marsh  v.  Lee, 
supra. 

3  Notes  to  Marsh  v.  Lee,  supra. 

*  Pledge  V.  White  [1896],  App.  Cas. 
187;  [1895]  1  Ch.  51;  following  Vint 
V.  Paget,  2  De  G.  &  J.  611.  But  see 
Tassell  v.  Smith,  2  De  G.  &  J.  713; 
Baker  v.  Gray,  1  Ch.  491 ;  Borrow  v. 
Kelly,  1  Dallas,  142;  Minter  v.  Carr 
[1894],  2  Ch.  321;  Anderson  v.  Neff, 
11  S.  &  R.  208,  223;  Thomas's  Ap- 
peal,   30    Pa.    378.      In   Connecticut 


the  doctrine  is  recognized.  See 
Chamberlain  v.  Thompson,  10  Conn. 
251;  Phelps  v.  Ellsworth,  3  Day,  397; 
Rowan  v.  The  Sharps'  Rifle  Man.  Co., 
29  Conn.  282,  324.  See,  also,  Lam- 
son  V.  Sutherland,  13  Vt.  309;  Wal- 
ling V.  Aiken,  1  McMullan  Eq.  1; 
Lee  V.  Stone,  5  Gill  &  J.  1. 

5  See  4  Kent's  Com.,  178,  179;  2 
Sug.  V.  &  P.  500  (8th  Am.  ed.), 
notes;  Parkist  v.  Alexander,  1  Johns. 
Ch.  399;  Green  v.  V.  S.  Bank,  1  Cai. 
Cas.  in  Error,  112. 


250  MORTGAGES.  [PART   I. 

given  for  the  purpose  of  securing  advances  to  be  made  in  the 
future ;  ^  and  when  this  is  the  case  questions  of  no  Httle  interest 
and  importance  arise.  A  leading  authority  upon  the  general  sub- 
ject, in  England,  is  the  case  of  Brace  v.  The  Duchess  of  Marl- 
borough.' It  was  there  held  (inter  alia)  that  "if  a  first  mort- 
gagee lends  a  further  sum  to  the  mortgagor  upon  a  statute  or 
judgment,  he  shall  retain  against  a  mesne  mortgage  till  both  the 
mortgage  and  statute  or  judgment  are  paid;  "  and  it  has  been 
decided  that  a  fortiori  is  this  the  case,  if  the  first  mortgagee  lends 
the  additional  sum  on  a  mortgage.'''  But  this  rule  is  subject  to 
the  qualification,  also  laid  down  in  Brace  v.  The  Duchess  of 
Marlborough,  that  the  party  making  the  subsequent  advance 
must  have  had  no  notice  of  the  second  mortgage;  for  being  with- 
out notice  is  his  sole  equity.'*  It  has,  moreover,  been  held  that 
even  if  the  first  mortgage  is  given  to  secure  a  sum  a.r\d  further  ad- 
vances, yet  if  the  first  mortgagee  made  such  further  advances 
after  notice  of  a  mesne  incumbi'ance,  he  will  not  be  entitled  to 
priority  in  respect  of  the  same.^  And  this  is  the  rule  even  al- 
though the  second  mortgagee  had  notice  of  the  nature  of  the 
first  mortgage.^ 

In  the  United  States  it  had  been  established  law  for  many 
years  that  a  mortgage  may  be  given  for  future  advances — for 
debts  to  be  contracted,  as  well  as  for  those  already  due.^ 

The  future  advances,  however,  to  be  protected,  must  be  made 

1  Lyle  V.  Ducomb,  5  Binn.  585;  « Shaw  v.  Neale;  Hopkinson  v. 
Irwin  f.  Tabb,  17  S.  &  R.  419;  Gar-       Roll,  supra. 

ber  V.  Henry,  6  Watts,  57;  Maffitt's  ^  United  States  v.  Hooe,  3  Cranch, 

Adm'r  v.  Rynd,  69  Pa.  387.  89;  Shirras  v.  Caig,  7  Id.  34;  Law- 

2  2  P.  Wms.  491.  rence  v.  Tucker,  23  How.  14;  Rip- 
3Morret  v.  Parke,  2  Atk.  252.  ley  v.  Harris,  3  Biss.  201;  Kansas 
*  1  L.  Ca.  Eq.  621 ;  Marsh  v.  Lee,  n.  Valley  Bank  v.  Rowell,  2  Dillon,  371 ; 
5  Shaw  V.  Neale,  20  Beav.  157;  6  Allen  v.  Lathrop,  46  Ga.  133;  Brac- 

H.  L.  Cas.  581;  Hopkinson  v.  Rolt,  kett  ?-.  Sears,  15  Mich.  244;  Appeal 
9  H.  L.  Cas.  514;  West  r.  Williams  of  Bank  of  Commerce,  44  Pa.  423; 
[1899],  1  Ch.  132;  Bradford  Banking  Taylor  v.  Cornelius,  60  Id.  187;  God- 
Co.  V.  Briggs,  12  .\pp.  Cas.  36.  These  dard  v.  Sawyer,  9  Allen,  78;  Seymour 
cases  overruled  the  old  case  of  Gor-  v.  Darrow,  31  Vt.  122;  Crane  v.  Dem- 
don  V.  Graham,  2  Eq.  Cas.  Ab.  598,  ing,  7  Conn.  387;  Balch  v.  Chaffee, 
which  was,  however,  erroneously  re-  73  Conn.  318;  Joslyn  r.  Wyman,  5 
ported,  the  decision  being,  in  fact,  Allen,  62;  Bank  of  Utica  v.  Finch,  3 
the  other  way.  In  Maryland  the  case  Barb.  Ch.  293;  Bell  v.  Fleming,  1 
of  Gordon  v.  Graham,  as  reported,  Beas.  13,  490;  Ladue  v.  The  Railroad 
has  been  followed.  Wilson  2>.  Russell,  Co.,  13  Mich.  .380;  Tully  v.  Harloe, 
14  Md.  495.  35  Cal.  302;  Foster  v.  Reynolds,  38 


CH.  VII.] 


MORTGAGES. 


251 


without  notice  of  the  intervening  encumbrance.^  And  it  has 
been  held  that  the  recording  of  the  intervening  encumbrance  is 
sufficient  notice.'  But  where  advances  are  made  in  pursuance  of 
a  binding  agreement,  the  party  making  them  will  be  protected ;  ' 
it  being,  of  course,  understood  that  the  agreement  is  cotempo- 
raneous  with  the  mortgage.'* 

It  must  be  remembered  that  when  the  subsequent  advances 
are  not  made  by  the  first  mortgagee,  in  pursuance  of  the  terms 
of  the  first  mortgage,  but  by  virtue  of  an  independent  and  sub- 
secjuent  security,  the  only  thing  which  will  protect  him  in  such  a 
case  will  be  the  doctrine  of  tacking,  which  (as  has  been  already 
stated)  is  not  generally  recognized  throughout  the  United  States. 

The  equity  of  redemption  being  considered  in  equity  as  an 
estate,  the  interest  of  the  mortgagee  is  in  the  eye  of  equity  per- 
sonalty, and  passes  to  the  executor,  and  not  to  the  heir.  A  trans- 
fer of  the  debt,  secured  by  a  mortgage,  will  entitle  the  assignee 
to  the  benefits  of  the  mortgage  security ;  and  the  payment  of  the 
debt  will  operate  to  revest  an  absolute  title  in  the  mortgagor, 
without  the  necessity  of  any  reconveyance.^ 

160.  Merger  ;  sometimes  prevented  in  Equity. 

In  dealing  with  the  two  titles  of  the  mortgagor  and  mortgagee, 
equity  will  sometimes  interfere  for  the  purpose  of  preventing  the 
application  of  the  doctrine  of  merger,  by  which  the  interests  of 
the  owner  of  the  land  might  be  injuriously  affected.  It  is  well 
settled  that  where  the  legal  and  equitable  estate  in  the  same  land 
become  invested  in  the  same  person,  the  equitable  will  merge  in 


Miss.  553;  Moroney's  Appeal,  24  Pa. 
:572;  Farnum  v.  Burnett,  21  N.  J.  Eq. 
87;  Witczinski  r.  Everman,  51  MLss. 
841;  note  to  Marsh  v.  Lee,  1  Lead. 
Cas.  Eq.  606.  Though  in  New  Hamp- 
shire, by  statute,  the  rule  is  the  other 
way.  New  Hampshire  Bank  ?'.  Wil- 
lard,  10  N.  H.  210;  Johnson  v.  Rich- 
ardson, 38  Id.  355.  See,  however, 
Trust  Co.  V.  Company,  70  N.  H.  118; 
Citizens'  Saving  Bank  v.  Kock,  117 
Mich.  225;  Home  Savings  &  Loan 
Association  v.  Burton,  20  Wash.  688; 
Kirby  v.  Raynes,  138  Ala.  194. 

'  Brinkerhoff  v.  Marvin,   5  Johns. 
Ch.  320;  Shirras  v.  Caig,  7  Cranch,  45; 


1  Lead.  Cas.  Eq.  608;  Finlayson  v. 
Crooks,  47  Minn.  74. 

2  Spader  v.  Lawler,  17  Ohio,  371; 
Norwood  V.  Norwood,  36  S.  C.  331; 
though  see  Shirras  v.  Caig,  7  Cranch, 
45. 

3  Crane  v.  Deming,  7  Conn.  387; 
Moroney's  Appeal,  24  Pa.  372;  Far- 
num V.  Burnett,  21  N.  J.  Eq.  87; 
Hyman  v.  Hauff,  138  N.  Y.  48;  1 
Lead.  Cas.  Eq.  608.  See  Wash,  on 
Real  Prop.   146. 

4  Grady  v.  O'Reilly,  116  Mo.  346. 

5  4  Kent's  Com.  194,  and  notes; 
Williams  on  Real  Prop.  391. 


252 


MORTGAGES. 


[part  I. 


the  legal  estate;  ^  and  so,  upon  the  same  principle,  in  the  case  of 
mortgages,  if  the  owner  of  the  land  becomes  also  the  owner  of  the 
mortgage,  the  two  titles  will  not,  as  a  general  rule,  remain  alive 
and  distinct,  but  the  title  as  mortgagee  will  sink  into  and  be 
swallowed  up  in  the  more  perfect  and  complete  title  as  owner.^ 
Now,  it  sometimes  happens  that  to  allow  this  general  rule  to 
operate  would  be  productive  of  great  hardship,  and  would  be 
exceedingly  inequitable ;  for  it  might  be  highly  for  the  interest  of 
the  owner  that  the  mortgage  should  be  kept  alive.  Thus,  cases 
have  arisen  in  which  the  equity  of  redemption  is  liable  to  the 
dower  of  the  wife  of  a  former  owner,  which  has  been  released  to  a 
former  mortgagee. 

If,  now,  the  purchaser  of  the  equity  of  redemption  subject  to 
dower  buys  in  the  outstanding  mortgage,  it  would  be  manifestly 
to  his  advantage  that  the  mortgage  should  be  kept  alive,  as  other- 
wise the  right  of  dower  would  be  let  in.^  In  such  a  case  as  this 
equity  will  treat  the  mortgage  title  as  still  subsisting,  and  will 
prevent  the  application  of  the  doctrine  of  merger.  Such  an  in- 
terposition of  equity  for  the  purpose  of  keeping  the  two  titles 
distinct,  will  take  place,  unless  there  is  a  declared  intention  in 
favor  of  the  merger,  or  unless  such  an  intention  can  be  presumed 
to  exist  from  the  circumstance  that  such  a  merger  would  be  to 
the  owner's  advantage."*  Equity  will  look  at  the  intention;  and 
will  pronounce  in  favor  of  or  against  merger,  accordingly.^ 

1  Perry   on   Trusts,    §  347.     See   2       Gleason,    60    la.    150;    International 


Spence  Eq.  879,  880. 

2  Wash,  on  Real  Prop.,  Book  I., 
Chap.  XVI.,  §VI.;  and  see  Belle- 
ville Sav.  Bank  v.  Reis,  1.36  111.  242; 
Bleckeley  v.  Branyan,  26  S.  C.  424; 
Bunch  V.  Grave,  111  Ind.  351;  Forth- 
man  v.  Deters,  206  111.  159;  Ames  v. 
Miller,  65  Nob.  204. 

a  2  Wash,  on  Real  Prop.  181.  See, 
also,  Evans  v.  Kimbell,  1  Allen,  240; 
Cook  V.  Brightly,  46  Pa.  439. 

*  Knowles  r.  Lawton,  18  Ga.  476; 
Waugh  V.  Riley,  8  Met.  290;  Van  Nest 
V.  Latson,  19  Barb.  604;  Hutchins  r. 
Carleton,  19  N.  11.  487;  Den.  v. 
BrowTi,  2  Dutch.  196;  Loomer  v. 
Wheelwright,  3  Sand.  Ch.  157;  Moore 
V.  Harrisburg  Bank,  8  Watts,  138; 
Bryar's  Appeal,   HI   Pa.  81;  Pike  r. 


Bank  v.  Wilshire,  108  111.  143;  In  re 
Pride  [1891],  2^  Ch.  135;  Wash,  on 
Real  Prop,  ut  sup.;  Case  v.  Fant,  10 
U.  S.  App.  415;  Watson  v.  Gardner, 
119  111.  312;  Hanlon  v.  Doherty,  109 
Ind.  37;  Bradford  v.  Burgess,  20  R.  I. 
(Part  II.)  48.  For  a  curious  case, 
see  Browne  i'.  Perris,  56  Hun,  601. 

5  Carrow  v.  Headley,  155  Pa.  96; 
Vaughan  v.  Consolidated  Mining  Co., 
21  Colo.  54;  Swatts  v.  Bowen,  141 
Ind.  322;  Cook  v.  Foster,  96  Mich. 
610;  Mathews  v.  Jones,  47  Neb.  616; 
Thorn  v.  Cann  [1895],  App.  Cas.  11. 
Liquidation  Estates  Purchase  Co.  v. 
Willoughby  [1896],  1  Ch.  726.  Of 
course,  equity  will  not  permit  this 
rule  as  to  "  intention  "  to  be  used  for 
the  accomplishment   of   fraud   or  of 


il 


CH.  VII.]  MORTGAGES.  253 

1 

161.  Equitable  mortgages  to  be  considered  under  Liens. 

In  addition  to  the  regular  and  ordinary  mortgages  above 
spoken  of,  there  are  other  securities  which  are  held  in  equity  to 
be  valid  encumbrances,  and  which,  partaking  somewhat  of  the 
nature  of  mortgages,  are  frequently  termed  equitable  mortgages.* 

Such  are  the  vendor's  lien  for  purchase-money;  mortgages 
created  by  the  deposit  of  title  deeds;  mortgages  of  equitable 
interests;  and  charges  of  certain  kinds.  These,  however,  are 
in  the  nature  of  liens,  and  do  not  result  in  the  creation  of  an 
independent,  equitable  title.  They  will,  therefore,  be  considered 
in  the  second  general  division  of  this  treatise  under  a  separate 
head.^ 

injustice  and  wrong  to  others.     Mil-  a  mortgage.     Gest  v.  Packwood,  39 

ler   V.    Wheelan,    158    111.    544,    555;  Fed.  Rep.  525. 

Allen  V.  Patrick,  97  Va.  521 ;  Moffet  i;.  2  See    post,    Part    II.,  'chapter    on 

Farwell,  222  111.  543;  Ames  v.  Miller,  Liens.     Mortgages  on  personal  prop- 

65  Neb.  204.  erty  will  also  be  considered   in   the 

1  An  agreement  to  give  security  for  same  connection, 
the  payment  of  a  debt  is,  vn  equity, 


254 


ASSIGNMENTS. 


[part  I. 


CHAPTER  VIII. 


ASSIGNMENTS. 


162.  Common-law  rule  forbidding  as- 

signment of  choses  in  action. 

163.  Exceptions. 

164.  Such    assignments    allowed    in 

equity. 

165.  .\ssignments  of  future  property; 

Holroyd  v.  Marshall;  Tailby  v. 
Official  Receiver. 

166.  Exceptions  to  the  general  rule. 

167.  Requisites  to  an  equitable  as- 

signment. 

168.  When  notice  of  assignment  nec- 

essary; to  whom  given. 


169.  Authorities  in  the  United  States 

conflicting. 

170.  Effect  of  equitable  assignments; 

assignment  is  subject  to  equi- 
ties between  original  parties. 

171.  Whether  assignment  is  subject 

to  equities  of  third  parties. 

172.  Rights  of  action  of  the  assignee 

at  law;  in  equity. 

173.  Liability  to  be  sued  cannot  be 

transferred ;  exceptions. 


162.  Common-law  rule  forbidding  assignment  of  choses  in 
action. 

The  subjects  of  property  may  be  divided  into  two  classes — 
things  in  possession,  and  things  not  in  possession;  and  things  not 
in  possession  may  again  be  divided  into  those  things  of  which 
there  is  a  present  right  to  the  immediate  possession,  and  those  of 
which  there  is  a  mere  right  to  the  future  possession.  Thus  a 
man  may  own  a  cargo  of  oil  (for  example)  which  he  either  has  in 
his  possession,  or  which  he  has  an  immediate  right  to  recover 
from  the  possession  of  another  who  unlawfully  detains  it,  or 
which  he  has  the  present  right  to  demand  and  receive  at  some 
future  time,  or  which  does  not  yet  exist. 

The  consequences  or  incidents  of  these  rights  may  vary,  but 
in  all  of  these  cases  there  is  a  general,  present,  right  or  title  of 
ownership,  which  any  perfect  system  of  justice  ought  to  recog- 
nize, protect,  and  enforce. 

Now,  the  common  law  could  only  deal  completely  with  the 
first  of  these  rights  or  titles — that  is  to  say,  the  only  ownership 
which  the  common  law  completely  recognized  was  the  ownership 
accompanied  by  possession.    In  such  cases  the  owner  could  enjoy 


CH.  VIII.]  ASSIGNMENTS.  255 

the  property,  or  transfer  it  to  another.  But  where  the  ownership 
and  the  possession  were  severed,  the  only  right  which  the  com- 
mon law  recognized  was  the  right  to  recover  the  possession;  in 
other  words,  the  right  of  the  owner  was  simply  a  lawsuit — a  chose 
in  action.  And  this  right  or  chose  in  action  he  could  not  assign. 
Where  there  was  a  present  right  to  the  future  accjuisition  of  prop- 
erty, the  common  law  was  still  more  at  fault,  for  there  was  not 
even  a  right  to  recover  the  goods,  but  only  a  right  to  recover 
damages  for  their  non-delivery.^ 

At  common  law,  these  rights  to  things  not  in  possession  by 
whatever  name  the}^  were  called,  whether  choses  in  action,  possi- 
bilities, expectancies,  things  not  in  esse,  or  mere  contingencies, 
were,  as  a  general  rule,  incapable  of  being  assigned;  the  reason 
being  twofold:  first,  that  to  allow  such  transfers  would  be  to  vio- 
late the  rules  against  maintenance  and  champerty,'  and,  second, 
because  there  could  be  no  valid  sale  unless  the  thing  to  be  sold 
was  in  rerum  natura,  and  under  the  immediate  control  of  the 
vendor.  Hence,  it  was  considered  against  sound  policy  to  allow 
any  man  to  transfer  to  another  a  mere  right  to  recover  in  a  suit 
at  law,  because,  in  this  way  (under  the  old  conditions  of  society), 
litigation  would  necessarily  be  encouraged,  and  the  rich  would 
be  induced  to  buy  up  lawsuits  for  the  purpose  of  enforcing  them 
against  the  poor;^  and  hence,  also,  it  was  considered  absurd  to 
make  a  sale  when  the  thing  to  be  sold  was  not  in  the  actual  owner- 
ship of  the  seller.  The  common  law,  therefore,  sought  to  pre- 
vent this  result  so  far  as  mere  choses  in  action  were  concerned  b}' 
a  twofold  method:  in  the  first  place,  by  punishing  such  transfers 
of  rights  of  action  as  crimes,  known  in  criminal  jurisprudence  as 
maintenance  and  champerty;  and,  in  the  second  place,  by  refus- 
ing to  recognize  the  title  of  the  transferee  of  the  debt  or  other 
chose  in  action,  when  he  sought  to  recover  upon  it  in  a  common- 
law  suit.  And  it  ])r(>vented  the  sale  of  things  of  which  the  vendor 
had  not  the  immediate  right  to  jmssession,  by  falling  back  upon 
the  rude,  conmion-sense  notion  that  if  you  had  not  a  thing  to  sell 

1  These  rights  to  property  deHvor-  Miss.  402;  Thallhimer  v.  Brincker- 
able  in  fiitnro  must  be  distinguished  hoff,  .3  Cow.  623;  Pelletreau  v.  Jack- 
from  remainder.s  and  reversions,  in  son,  11  Wend.  Ill;  Jackson  v.  Wal- 
which  the  possession  of  the  partieular  dron,  13  Id.  178;  Needles  v.  Needles, 
tenant  enured  to  the  benefit  of  the  re-  7  Ohio  St.  442;  note  to  Ryall  v. 
maindermun  or  rc\ersioncr.  Rowlcs,  2  Lead.  Cas.  Eq.  *770  (4th 

2  Co.  Litt.  214,  a;  Lampet's  Case,  Eng.  ed.). 

10  Coke,  47;  Cassedy  v.  Jackson,  45  ^  See  ante,  p.  11. 


256  ASSIGNMENTS.  [PART   I. 

you  could  not  sell  it;  in  other  words,  that  to  every  bargain  there 
must  be  an  actual,  subsisting  subject. 

163.  Exceptions. 

To  this  general  rule  there  were  two  exceptions,  one  resulting 
from  the  dignity  of  the  person  concerned,  and  the  other  rendered 
necessary  by  the  character  of  the  subject-matter  of  the  transfer. 

The  king  could  be  the  assignee  of  a  chose  in  action;  ^  and  an 
annuity  (although  in  reality  nothing  more  than  a  chose  in  action) 
coidd  be  assigned.  The  reason  of  the  first  of  these  two  exceptions 
was,  perhaps,  the  exalted  rank  of  the  individual,  which  forbade 
the  application  of  the  ordinary  rules ;  for  a  transfer  to  the  fountain 
and  head  of  all  justice  could  not  be  supposed  to  work  injustice. 
To  except  annuities  from  the  operation  of  the  mle  was  in  fact 
illogical,  as  by  strict  reasoning  they  should  undoubtedly  have 
fallen  within  it;  but  it  was,  perhaps,  felt  that  it  would  be  oppres- 
sive if  this  very  common  species  of  property  were  not  to  enjoy  the 
same  qualities  of  alienability  which  were  possessed  by  personalty 
in  possession,  and  hence  the  exception  sprang  up  out  of  a  kind 
of  necessity,  and  is  now  thoroughly  established.^ 

164.  Such  assigniuents  allowed  in  equity. 

Such  was  the  rule,  and  such  the  exceptions,  at  common  law.' 
In  equity,  while  transfers  of  mere  litigious  rights  are  not  recog- 
nized, yet  the  principle  is  firmly  established  that  assignments  of 
choses  in  action,  possibilities,  expectancies,  things  not  in  esse,  and 
mere  contingencies  will  be  enforced,  whenever  such  assignments 
are  based  on  a  valuable  consideration  or  have  assumed  such  a 
shape  that  the  assignor  has  constituted  himself  a  trustee  for  the 
assignee.''  The  assignee  is  looked  upon  as  the  true  owner  of  the 
thing  assigned,  and  is  entitled  to  use  it  for  his  own  purposes.^ 
In  other  words,  equity  completely  recognizes  and  enforces  the 
present  ownership  of  things  not  in  possession.^ 

1  Co.  Litt.  2.32,  b.,  n.  Note  to  Lennig's  Estate,  182  Id.  496.  Post, 
Ryall  V.  Rowlcs,  !<npra.  §  169;  Jarvis  v.  Binkley,  206  III.  541. 

2  Gerrard  v.  Boden,  Hetl.  80.  s  Morgan  v.  Bank  of  North  Amer- 

3  It  will  be  remembered  that  by  ica,  8  S.  &  R.  73;  Ramsey's  Appeal,  2 
custom  of  merchants  bills  of  ex-  Watts,  228;  Kountz  v.  Kirkpatrick, 
change    were    negotiable,    and    that  72  Pa.  385. 

promissory  notes  were  likewise  made  «  gge  Wright  r.  Wright,  1  Ves.  Sr. 

negotiable  by  Stat.  3  and  4  Anne,  c.  9.       412;  Hinkle  r.  Wanzer,  17  How.  353; 

<  See  Kuhns's  Estate,  163  Pa.  438;      Peyton    v.    Hallett,    1    Caines,    363; 


CH.  VIII.] 


ASSIGNMENTS, 


257 


Thus  a  debt,  a  mere  chance  of  acquiring  an  estate/  an  ex- 
pectation of  an  inheritance/  or  personal  property  not  yet  ac- 
quired by  the  assignor,  or  not  yet  in  rerum  natura,  may  all  be 
assigned  in  equity,  and  the  assignee  can  have  relief  in  a  Court  of 
Chancery,  if  that  relief  is  necessary  to  protect  or  enforce  his  title.^ 
In  short,  the  fact  that  the  property  transferred  is  not  in  existence 
"is,  in  contemplation  of  equity,  not  material."  ^ 

165.  Assignments  of  fntnre  property. 

The  principles  upon  which  assignments  in  equity  are  based, 
especially  those  which  have  for  their  subject  property  to  be  ac- 
quired infuturo,  have  been  discussed  with  great  care  and  learn- 
ing, during  the  last  few  years,  in  the  highest  English  courts. 

It  had  been  decided  by  the  courts  of  common  law  that  an  as- 
signment of  future  acquisitions,  as,  for  example,  the  future  freight, 
earnings,  and  profits  of  a  ship,  was  void  at  law,^  while  in  equity 
the  same  assignment  had  been  upheld.*'    But  the  opinion  had 


Cutts  r.  Perkins,  12  Mass.  206; 
Brooks  i\  Hatch,  6  Leigh,  537; 
Townshend  v.  Windham,  2  Ves.  Sr. 
6;  Garland  r.  Harrington,  FA  N.  H. 
414;  Perkins  v.  Butler  County,  44 
Neb.  110;  Row  v.  Dawson,  1  Ves.  Sr. 
331;  2  Lead.  Cas.  Eq.  731;  Voyle  v. 
Hughes,  5  Sm.  &  (jiff.  18.  In  a  case 
in  Freeman,  p.  144,  Lord  Keeper 
Bridgeman  is  reported  to  have  said 
that  the  assignment  of  a  chose  in 
action  would  be  protected  only  when 
made  in  satisfaction  of  some  debt 
due  to  the  assignee,  and  not  when  the 
assignment  is  voluntary  or  for  money 
then  given.  This  last  is  clearly  not 
now  the  rule  in  equity. 

1  Hobson  V.  Trevor,  2  P.  Wms.  191 ; 
Wethered  v.  Wethered,  2  Sim.  183; 
I'itzgerald  v.  Vestal,  4  Sneed,  258; 
Douglass  V.  Russell,  4  Sim.  524;  Wat- 
son r.  S*nith,  110  N.  C.  0. 

2  Varick  v.  Edwards,  1  Hoff.  Ch. 
382;  Kuhns's  Estate,  163  Pa.  438; 
Clendening  v.  Wyatt,  54  Kan.  525; 
Hale  V.  Hollon,  90  Tex.  427;  right 
to  have  dower  assigned,  McMahon  v. 
Gray,  150  Mass.  289. 

3  .\nd  this  is  so  even   where  the 

17 


property  {e.  g.,  the  sum  payable  un- 
der a  life  insurance  policy)  is  clogged 
with  an  express  condition  that  it 
shall  not  be  assigned.  In  re  Turcan, 
40  Ch.  D.  10. 

4  Peugh  V.  Porter,  112  U.  S.  742. 

5  Robinson  v.  Macdonnell,  5  Maule 
&  Sel.  227;  trover  for  the  ship  Warre 
and  500  tons  of  oil.  This  was  the 
general  rule  at  law.  See  Lunn  v. 
Thornton,  1  C.  B.  379;  Hamilton  v. 
Rogers,  8  Md.  301.  The  modern  ten- 
dency of  courts  of  law  is  towards 
adopting  the  doctrine  of  courts  of 
equity  upon  these  subjects.  Brown 
V.  Bateman,  L.  R.  2  C.  P.  272;  Hope 
V.  Hayley,  5  El.  &  Black.  829;  Leslie 
V.  Guthrie,  1  Bing.  (N.  C.)  697.  See, 
however,  Blakeley  v.  Patrick,  67  N. 
C.  40,  and  Wyatt  v.  Watkins  (Sup. 
Ct.  Tenn.),  16  Albany  L.  J.  205; 
note  to  McCaffrey  v.  Woodin,  22 
Am.  Rep.  644;  Low  v.  Pew,  108 
Mass.  347. 

«  In  re  Ship  Warre  (in  the  matter 
of  Robinson  et  al.,  Bankrupts),  8 
Price,  269,  n.  See,  also,  Field  v. 
The  Mayor  of  New  York,  2  Seld. 
179;    Emery    v.    Lawrence,    8   Cush. 


258  ASSIGNMENTS.  [PART   I. 

been  expressed,  and  for  some  little  time  continued  to  prevail,  that 
the  e(iuitable  right  would  be  imperfect  and  incomplete  unless 
there  was  a  subsequent  possession  or  some  act  equivalent  to  it, 
for  the  purpose  of  perfecting  the  title;  or,  in  other  words,  that 
the  maxim  of  Bacon  in  regard  to  legal  assignments,  "Licet  dis- 
positio  de  interesse  futuro  sit  inutilis,  tamen  potest  fieri  de- 
claratio  pr^pcedens  qute  sortiatur  effectum  interveniente  novo 
actu,"  was  applicable  also  to  equitable  assignments,  and  that  the 
latter,  equally  with  the  former,  would  be  incapable  of  enforce- 
ment, unless  there  was  ''novus  actus  interveniens."  ^    Upon  this 
ground  Lord  Chancellor  Campbell  decided  the  case  of  Holroyd  v. 
Marshall,  and  held  that  where  there  had  been  an  agreement,  by 
which  the  machinery  and  implements  thereafter  to  be  brought 
into  a  mill  should  be  subject  to  the  trusts  of  a  mortgage,  and  such 
machinery  was  afterwards  l^rought  in  and  had  been  taken  in  exe- 
cution by  creditors  of  the  assignor  before  the  ecjuitable  assignees 
had  done  anything  to  perfect  their  title,  the  assignment  was  in- 
valid as  against  the  execution  creditors.    But  on  appeal  to  the 
House  of  Lords,  this  decree  was  reversed.     In  his  judgment  in 
that  case.  Lord  Wcstbury  gave  a  most  lucid  statement  of  the  law 
upon  the  subject.    The  true  ground  upon  which  this  and  similar 
decisions  are  to  be  placed  appears  to  be,  that  a  court  of  equity 
enforces  such  assignments  on  the  ground  that  the  assignee  is  en- 
titled to  have  immediate  specific  performance  of  the  contract  to 
assign,  as  soon  as  the  property  comes  into  existence,  in  the  hands 
of  the  assignor.    But  it  must  not  be  understood,  by  this  remark, 
that  the  assignee's  right  is  merely  in  the  nature  of  a  right  to  the 
specific  performance  of  executory  contracts,  or  is  to  be  measured 
by  the  limitations  by  which  that  equitable  remedy  is  controlled. 
The  assignee's  right  is  something  more.    It  is  a  present  title  not 
existent  at  law,  but  thoroughly  recognized  in  equity;  and  to  that 
title  equity  stands  ready  to  give  full  effect  the  instant  the  prop- 
erty comes  into  being.'    It  is  true  that  neither  in  equity,  nor  at 
law,  can  a  contract  to  transfer  property  not  then  in  existence, 
operate  as  an  immediate  and  complete  alienation,  for  the  simple 
reason  that  there  is  nothing  which  can  be  inmiediately  and  com- 

1.51;  Boylen  v.  Leonard,  2  Allen,  407;  where  the  authorities  based  upon  this 

Wilt    V.    Huffman,    46   W.   Va.   47.3;  doctrine,    which,   in  equity  at  least, 

Central  Trust  Co.  v.  West  India  Imp.  is  no  longer  soundy  are  collected. 

Co.,  169  N.  Y.  314.  2  See  the  language  of  Lord  Chan- 

1  See    American    note    to    Row    i-.  cellor  Herschcll  in  Tailby  v.  Official 

Dawson,     2    Lead.    Gas.    Eq.    1612,  Receiver,  13  App.  Cas.  531,  explain- 


;h.  VIII.] 


ASSIGNMENTS. 


259 


pletely  transferred.  But  instantly  upon  the  acquisition  of  the 
thing,  the  assignor  holds  it  in  tmst  for  the  assignee,  whose  title 
requires  no  act  on  his  part  to  perfect  it.^  The  assignee,  therefore, 
has  an  equitable  title  from  the  time  of  the  assignment.  The  ex- 
istence of  this  title  is  illustrated  by  not  a  few  cases,  some  of  them 
quite  recent.  In  Ex  parte  Barber,^  an  undertaking  to  hand  over 
the  bill  of  lading  of  a  cargo  of  oil  then  en  route  to  the  assignor, 
was  held  to  give  the  assignee  a  right  superior  to  that  of  the  as- 
signees in  bankruptcy  under  a.  fiat  issued  eight  days  after  the  as- 
signment.^ In  Coombe  v.  Carter''  the  mortgage  was  upon  "all 
moneys  of  or  to  which  the  mortgagor  was  or  might,  during  the 
security,  become  entitled  under  any  settlement,  will,  or  other 
document,  either  in  his  own  right  or  as  the  devisee,  legatee,  or 
next  of  kin  of  his  father  or  any  other  person  or  persons."  The 
mortgagor  became  entitled  under  a  will  to  a  share  in  the  residuary 
estate ;  and  the  Court  of  Appeals  held  that  this  share  was  covered 


ing  the  reference  of  Lord  Westbury 
to  the  doctrine  of  specific  perform- 
ance in  this  connection,  alluded  to  in 
the  text. 

iHolroyd  v.  Marshall,  10  H.  L. 
Cas.  209.  This  case  was  twice  ar- 
gued in  the  House  of  Lords.  Upon 
the  first  argument,  the  law  Lords 
present  were  Lords  Campbell,  Wens- 
leydale,  and  Chelmsford.  Lord 
Campbell  adhered  to  the  opinion 
which  he  had  pronounced  as  chan- 
cellor (2  De  G.,  F.  &  J.  .596),  and 
Lord  Wensleydale  was  disposed  to 
agree  with  him;  but  Lord  Chelmsford 
was  in  favor  of  reversing  the  decree. 
Upon  the  second  argument,  after  the 
death  of  Lord  Chancellor  Campbell, 
Lord  Westbury,  then  chancellor,  de- 
livered the  opinion,  referred  to  in 
the  text,  which  induced  Lord  Wens- 
leydale to  change  his  mind,  and  con- 
firmed Lord  Chelmsford  in  his  views. 
See  further  on  this  subject  Wright  r. 
Wright,  1  Ves.  Sr.  411;  Langton  v. 
Horton,  1  Hare,  549;  Lindsay  v. 
Gibbs,  22  Beav.  522;  Brown  v.  Tan- 
ner, L.  R.  .3  Ch.  597;  Wilson  v.  Wil- 
son, L.  R.  14  Eq.  32;  Brown  v.  Bate- 


man,  L.  R.  2  C.  P.  272;  Philadelphia, 
etc.,  R.  R.  V.  Woelpper,  64  Pa.  372; 
Morrill  r.  Noyes,  56  Me.  465;  Mitchell 
V.  Winslow,  2  Story,  630;  Brett  v. 
Carter,  2  Lowell's  Dec.  458;  Beall  v. 
White,  94  U.  S.  387;  Wade  v.  Chicago 
Sp.  &  St.  L.  R.  R.  Co.,  149  U.  S. 
327;  Williamson  v.  N.  J.  Southern 
R.  R.  Co.,  25  N.  J.  Eq.  14;  Stewart 
V.  Kirkland,  19  Ala.  162;  Pennock  v. 
Coe,  23  How.  117;  Pierce  v.  Emery, 
32  N.  H.  484;  Benjamin  v.  Elmira 
R.  R.,  49  Barb.  441;  Central  Trust 
Co.  V.  W^st  India  Imp.  Co.,  169 
N.  Y.  314;  Phillips  v.  Winslow,  18  B. 
Mon.  431;  Sillers  r.  Lester,  48  Miss. 
513;  Pierce  v.  Mil.  R.  R.  Co.,  24  Wis. 
551;  Barnard  v.  Nor.  &  Wor.  R.  R., 
14  N.  B.  R.  469;  Smith  v.  Bates 
Machhie  Co.,  182  111.  166;  First 
Nat.  Bankr.  School  District,  77  Neb. 
570;  Post,  Part  II.,  chap,  on    Liens. 

2  3  Mont.  Deac.  &  De  G.  174. 

3  See,  also,  Gardner  v.  Lachlan,  4 
My.  &  Cr.  129;  Curtis  v.  Auber,  1  J. 
&  W.  506;  Preston  v.  Russell,  71 
VeMn.  151. 

^35Ch.  D.  109;  36  Id.  348. 


260 


ASSIGNMENTS. 


[part  I. 


by  the  mortgage.  So  in  Tailby  v.  Official  Receiver/  an  assign- 
ment of  "all  the  book  debts  due  or  owing,  or  which  may,  during 
the  continuance  of  this  security,  become  due  and  owing  to  the 
said  mortgagor,"  was  held  to  carry  the  title  to  debts  which  had 
thereafter  accrued  due.  In  that  case  a  manufacturer  named 
Izon,  in  May,  1879,  assigned  to  one  Tyrrell,  for  a  valuable  con- 
sideration, his  stock  in  trade  and  book  debts;  he  (Izon)  still  con- 
tinuing to  carry  on  the  business.  Five  years  afterwards  Izon 
sold  on  credit  to  Wilson  &  Co.,  a  small  bill  of  goods,  amounting 
to  something  over  ten  pounds.  A  year  later,  the  executors  of 
Tyrrell  (who  had  died)  took  possession  of  the  mortgaged  prop- 
erty and  sold  the  book  debts,  Tailby  becoming  the  purchaser  of 
the  debt  due  by  Wilson  &  Co.  Tailby  gave  notice  of  his  title  to 
Wilson  &  Co.,  and  required  them  to  make  payment  to  him,  which 
they  accordingly  did.  Some  time  after  the  date  of  the  notice,  but 
before  the  payment,  Izon  was  adjudged  a  bankrupt;  and  the 
Official  Receiver,  who  was  appointed  his  trustee,  brought  suit 
in  the  Queen's  Bench  to  recover  the  sum  which  Tailby  had  re- 
ceived from  Wilson  &  Co.  It  was  ultimately  held  in  the  House  of 
Lords  that  the  trustee  was  not  entitled  to  recover,  the  case  being 
ruled  upon  the  doctrine  that  the  assignment  from  Izon  to  Tyrrell 
carried  a  title  to  the  book  debts.  This  case  has  been  fully  stated, 
as  in  it  the  doctrine  in  question  was  strikingly  illustrated  and 
most  exhaustively  discussed. - 

It  may  be  added  that  the  present  transfer  of  future  property 
differs  from  the  mere  power  to  seize  it;  ^  and  that  the  right  of  a 
mortgagee  of  future  property  is  subject  to  the  conditions  under 
Vvhich  it  is  acquired  by  the  mortgagoi"."* 

The  doctrine  that  mortgages  of  personal  property  to  be  ac- 
quired in  the  future  are  valid  in  ecjuity  may  be  said  to  have  be- 


1  13  Appeal  Cas.  528.  See  Dunn  v. 
Michigan  Club,  115  Mich.  409,  for  a 
similar  case. 

2  The  case  went  through  many  fluc- 
tuations. It  was  first  heard  before 
i)  county  judge,  who  decided  in  the 
plaintiff's  favor.  The  Queen's  Bench 
Division  reversed  this  decision ;  th(^ 
Court  of  .Vppeal  reversed  the  Divi- 
sion; and  the  House  of  Lords,  finally, 
reversed  the  Court  of  Appeal. 

The  equity  rule  that  a  contract 
for  the  sale  of  chattels  to  be  after- 


wards acquired  transfers  the  bene- 
ficial interest  in  such  chattels  to  the 
vendee  as  .soon  as  they  are  acquired 
by  the  A^mdor,  is  limited  to  the  case 
of  sales  of  .specific  articles  which,  on 
being  acquired  by  the  vendor,  can 
be  identifietl  as  the  very  things  sold. 
Block  V.  Shaw,  78  Ark.  511. 

^  See  Reeve  v.  Whitmore,  33  L.  J. 
Ch.  03-GG. 

*  Cumberland  Union  Banking  Co. 
r.  Maryport  Hematite  Iron  &  Steel 
Co.  [1S92],  1  Ch.  D.  415. 


CH.  VIII.] 


ASSIGNMENTS. 


2G1 


come  well  established  in  America,  and  the  authority  of  Holroyd 
V.  Marshall,  and  the  applicability  of  the  principle  upon  which  that 
decision  was  rested,  have  been  expressly  recognized.  Thus  in  Mc- 
Caffrey V.  Woodin,^  the  lease  of  a  farm  gave  the  lessor  a  lien  upon 
"personal  property  which  may  be  put  on  said  premises;"  and  it 
was  held  by  the  Court  of  Appeals  of  New  York  that  while  in  law 
the  title  did  not  pass,  at  all  events  until  after  the  lessor  had  ex- 
ercised the  license  by  actual  seizure,  yet  in  equity  the  beneficial 
interest  was  transferred  without  the  intervention  of  any  neiv  act, 
and  the  equitable  title  attached  immediately  upon  the  coming 
into  existence  or  the  acquisition  of  the  property.  Similar  de- 
cisions have  been  made  in  the  Federal  courts,  and  in  those  of 
many  states.'  Of  the  cases  of  assignments  of  future  acquisitions, 
mortgages  by  railroad  companies  of  rolling  stock  and  other  per- 


1  65  N.  Y.  459.  See,  also,  Central 
Trust  Co.  V.  West  Ind.  Imp.  Co., 
169  N.  Y.  314.  But  some  New  York 
cases  would  seem  opposed  to  the 
doctrine  of  Holroyd  v.  Marshall. 
See  Deeley  v.  Dwight,  132  N.  Y.  59, 
and  Rochester  Distilling  Co.  v.  Rasey, 
142  Id.  570. 

2  Butt  V.  Ellett,  19  Wall.  544  (mort- 
gage of  future  crops) ;  Brett  v.  Carter, 
2  Lowell's  Dec.  458;  Burrill  v.  Whit- 
comb,  100  Me.  286  (future  stock  of 
goods);  Mitchell  v.  Winslow,  2  Story, 
630;  Wyatt  v.  Watkins,  4  Law  &  Eq. 
Reporter,  240  (mortgage  of  future 
crops);  Arques  v.  Wasson,  51  Cal. 
620  (future  crops);  Richardson  v. 
Washington  et  al,  88  Tex.  3:59  (fu- 
ture crops).  See,  also,  Bittenbender 
V.  The  Sunbury  &  Erie  R.  R.  Co.,  40 
Pa.  269;  Collins's  Appeal,  107  Id. 
590;  Caulfield  v.  Van  Brunt,  173  Id. 
428;  Dutton's  Estate,  181  Id.  432; 
Brown  v.  Dail,  117  N.  Car.  41;  Wil- 
liams V.  Chapman,  118  N.  Car.  943; 
Walker  v.  Vaughn,  33  Conn.  577; 
Pennock  v.  Coe,  23  How.  117;  Pul- 
lan  V.  C.  &  C.  Air  Line  R.  Co.,  5  Biss. 
248;  Smithurst  v.  Edmunds,  14  N. 
J.  Eq.  408;  Cumberland  Nat.  Bk. 
V.  Baker,  57  N.  J.  Eq.  231;  Groton 
Manuf.  Co.  v.  Gardiner,  11  R.  I.  626; 


Galveston  R.  R.  Co.  v.  Cowdrey,  11 
Wall.  459;  United  States  v.  New  Or- 
leans R.  R.  Co.,  12  Id.  362;  Tedford 
V.  Wilson,  3  Head,  311;  Phila.,  Wil. 
&  Bait.  R.  R.  Co.  V.  Woelpper,  64 
Pa.  366;  Phillips  v.  Winslow,  18  B. 
Mon.  431;  Pierce  v.  Mil.  &  St.  P.  R. 
R.  Co.,  24  Wis.  551;  Barnard  v. 
Nor.  &  Wor.  R.  R.  Co.,  14  N.  B.  R. 
469;  3  Cent.  L.  R.  608;  Comer  v. 
Lehman  &  Co.,  87  Ala.  362;  Central 
Trust  Co.  V.  Ohio  Centr.  R.  Co.,  36 
Fed.  Rep.  5.36,  537;  Jernegan  r.  Os- 
born,  155  Mass.  207;  Fidelity  Co.  i\ 
vSturtevant  Co.,  86  Miss.  509;  Flana- 
gan Bank  v.  Graham,  42  Or.  403 ;  Mor- 
ton V.  Williamson,  72  Ark.  390.  Some 
decisions  in  this  country  are,  how- 
ever, the  other  way,  the  principal  of 
these  being  Moody  v.  Wright,  13 
Met.  17;  Hutchinson  v.  Ford,  9  Bush, 
318;  Lam.son  v.  MofTat,  61  Wis.  l.W; 
Blanchard  v.  Cooke,  144  Mass.  207, 
and  New  Lincoln  Hotel  Co.  v.  Shears, 
57  Neb.  478.  The  conveyance  of 
"any  invention  which  may  here- 
after be  made  by  me "  will  not  op- 
erate as  an  assignment.  See  Re- 
gan Vapor  Engine  Co.  v.  Pacific 
Gas  Engine  Co.,  7  U.  S.  App. 
73. 


202 


ASSIGNMENTS. 


[part  I. 


sonul  property  are  perhaps  of  the  most  practical  importance. 
The  vahdity  of  such  mortgages  is  now  thoroughly  estab- 
hshed.^ 

The  doctrine  under  consideration  is  of  very  great  practical  im- 
portance. If  the  right  of  the  assignee  rises  (as  it  is  here  con- 
ceived it  does)  to  the  dignity  of  a  title  to  the  specific  property, 
it  cannot  be  defeated  by  an  assignee  in  bankruptcy  (for  example) 
who  could  not,  therefore,  successfully  resist  an  action,  or  rather 
a  bill  in  equity,  to  recover  the  specific  goods.  If  the  right  of  the 
assignee  is  a  mere  right  to  recover  damages  for  the  nonfulfilment 
of  a  contract  to  deliver  goods,  he  would  necessarily  come  in,  pari 
passu,  with  other  creditors  of  the  insolvent  vendor. 

It  has  been  decided,  in  some  cases,  that  in  order  to  create  an 
equitable  title  or  estate  in  the  assignee,  the  property  must  be,  in 
some  way,  specifically  pointed  out.-  But  under  the  strictly 
equitable  doctrine — that  is,  the  doctrine  unhampered  by  any 
conmion-law  considerations — such  identification  does  not  seem 
necessary.    General  words  are  enough.*' 

A  covenant  affecting  lands  thereafter  to  be  acquired,  if  it 
specifies  the  land,  and  the  property  is  afterwards  acquired  with 
an  intent  to  satisfy  the  covenant,  will  operate  in  equity  upon  the 
lands  so  afterwards  acquired.^ 

It  is  to  be  remembered  that  when  it  is  claimed  that  after-ac- 
quii'ed  property  is  brought  under  the  lien  of  an  existing  mort- 
gage, there  are  certain  limitations  to  which  the  alleged  claim  is 
subject.  The  chief  qualification  is  that  the  mortgagee  of  after- 
accjuired  property  is  not  a  purchaser  for  value  in  the  sense  that 
he  can  acquire  an  interest  by  way  of  estate  or  lien  greater  than 
that  which  the  mortgagor  has  himself.  The  lien  of  the  mortgage 
attaches  to  after-acciuired  property  in  the  condition  in  which 
the  mortgagor  takes  it  from  his  vendor  and  also  subject  to  all 
known  liens  or  equities  valid  against  the  vendee  and  mortgagor 


1  See  Jones  on  Mortgages,  §§  152, 
153,  1.54,  and  452.  Note,  also,  the 
case  of  Ga.  So.  R.  R.  Co.  v.  Merc.  Tr. 
&  Dep.  Co.,  04  Ga.  306. 

2  Belding  v.  Read,  3  Hurl.  &  Colt. 
961;  Coombe  v.  Carter,  35  Ch.  D. 
109,  112,  115:  Morrill  r.  Noyes,  56  Me. 
465.  See  Benjamin  on  Sales,  pp.  62- 
67. 

3  Coombe  v.  Carter,  35  Ch.  D.  109; 


36  Id.  348;  Tailby  v.  Official  Re- 
ceiver, 13  App.  Cas.  523;  Bacot  v. 
Varnado,  91  Miss.  825. 

•*  Metcalfe  v.  The  Archbishop  of 
York,  1  M.  &  Cr.  547;  Lyde  v.  Mynn, 
4  Sim.  505;  Wellesley  v.  Wellesley,  4 
My.  &  C.  579;  2  Lead.  Cas.  Eq.  772. 
See,  however,  Countess  of  Morning- 
ton  V.  Keane,  2  De  G.  «fc  J.  292. 


CH.  VIII.] 


ASSIGNMENTS. 


263 


which  arose  in  the  act  of  purchase  or  acquisition  and,  therefore, 
necessarily  quahfy  its  scope  and  extent.^ 

166.  Exceptions  to  the  general  rule. 

To  the  general  equitable  rule  which  favors  transfers  of  things 
not  in  possession,  there  are,  however,  certain  exceptions,  just  as 
we  have  seen  that  there  are  exceptions  to  the  common-law  rule 
forbidding  such  assignments. 

Thus,  in  equity  a  mere  litigious  right,  the  transfer  of  which 
would  simply  tend  to  encourage  litigation,  and  thus  fall  within 
the  spirit  of  the  rule  against  maintenance,  will  not  be  recognized.' 
Therefore  a  bare  right  to  file  a  bill  in  chancery  on  the  ground  of 
fraud  cannot  be  assigned  even  in  equity.^  Where,  however,  an 
assignment  is  made  of  subsisting  property,  an  incidental  right  to 
sue  for  a  fraud  will  pass  by  the  assignment.'* 

So,  too,  equity  will  not  recognize  assignments  of  certain  species 
of  property  which  it  would  be  against  the  policy  of  the  law  to 
allow  the  owners  to  part  with.  These  are  pensions  given  as  re- 
wards for  extraordinary  services,  pay  or  half-pay  in  the  army, 
the  salaries  of  judges,  claims  against  the  United  States,^  and 
other  revenues  and  emoluments  of  a  kindred  character,  which 


1  See  the  language  of  Judge  Taft  in 
Harris  i'.  Youngstown  Bridge  Com- 
pany, 33  C.  C.  A.  74,  citing  Pennock 
V.  Coe,  23  How.  117,  and  a  number 
of  other  cases,  concluding  with  Irri- 
gation Co.  V.  CJarland,  164  U.  S.  1. 
See,  also,  Venner  v.  Farmers'  Loan 
and  Trust  Co.,  33  C.  C.  A.  101,  102. 

2  See  Peck  v.  Heurick,  167  U.  S. 
624. 

^  De  Hoghton  v.  Money,  L.  R.  2  Ch. 
169;  Prosser  v.  Edmunds,  1  Y.  &  C. 
Exch.  R.  481 ;  Milwaukee  and  Minne- 
sota R.  Co.  r.  The  Milwaukee  and 
Western  R.  Co.,  20  Wis.  183;  Gard- 
ner V.  Adams,  12  Wend.  297;  Mar- 
shall r.  Means,  12  Ga.  61.  See,  also, 
Wilhite  V.  Roberts,  4  Dana,  172; 
Slade  V.  Rhodes,  2  Dev.  &  Bat.  Eq. 
24;  Smith  v.  Thompson,  94  Mich.  381 ; 
Jones  V.  Babcock,  15  Mo.  App.  149; 
Wilson  V.  St.  Louis  &  W.  Ry.  Co., 
120  Mo.  45;  Dunklin  v.  Wilkins,  5 
Ala.  199;  In  re  Paris  Skating  Rink 


Co.,  5  Ch.  D.  959;  Gruber  v.  Baker, 
20  Nev.  453;  Staude  r.  Tscharner, 
187  111.  19.  The  lien  of  a  vendor  for 
purchase-money  was  held  not  to  be 
assignable  in  Richards  v.  Learning,  27 
111.  431;  Keith  r.  Horner,  32  Id.  524; 
Elder  i'.  Jones,  85  Id.  384;  McKee  v. 
Judd,  2  Kernan,  622.  Such  an  as- 
signment will  be  set  aside.  Arden  v. 
Patterson,  5  Johns.  Ch.  44.  But  see 
Davis  V.  Smith,  88  Ala.  596;  Annis  v. 
Butterfield,  99  Me.  181. 

<  Emmons  v.  Barton,  109  Cal.  662; 
Gandy  v.  Fortner,  119  Ala.  303; 
Ha.seltine  v.  Smith,  154  Mo.  404; 
Wimpfheimer  v.  Perrine,  61  N.  J.  Eq. 
126;  Hicks  v.  Steel,  126  Mich.  408; 
National  Valley  Bank  v.  Hancock, 
100  Va.  101. 

5  Wood's  Executors  i'.  Dialogue,  15 
Phila.  160;  St.  Paul  &  D.  R.  Co.  v. 
V.  S.,  112  U.  S.  733.  An  assignment 
by  a  public  officer  of  his  salary  or 
fees  before  they  are  due  impairs  the 


264 


ASSIGNMENTS. 


[part  I. 


reasons  of  state  require  should  remain  always  for  the  benefit  of 
the  person  to  whom  they  were  originally  given. ^ 

Upon  analogous  principles,  assignment  by  an  executor  of  his 
commissions  before  the  same  are  ascertained  in  the  manner 
prescribed  by  law,  or  of  alimony  to  be  allowed  and  paid  in  the 
future,  have  been  held  to  be  contrary  to  public  policy.' 

A  purely  personal  trade-mark  is  not  assignable ;  ^  and  the 
mere  name  of  an  individual  is  not  assignable,  as  to  sustain  such 
a  sale  would  be  to  practice  a  fraud  upon  the  public.  This  con- 
clusion was  reached  in  England  and  in  New  York  some  years  ago ; 
and  has  recently  been  adopted  and  applied  in  Massachusetts, 
Pennsylvania  and  elsewhere."*  A  contract  assigning  "any  in- 
vention" which  the  assignor  "may  hereafter  make"  in  certain 
articles  of  manufacture,  will  not  operate  to  pass  the  invention 
when  made.^  A  publishing  agreement  between  an  author  and 
publisher  is  purely  personal.  It  cannot  be  assigned  by  the  pub- 
hsher  without  the  author's  consent.^ 

It  has  been  held,  moreover,  that  the  right  of  action  for  a  mere 
personal  tort  cannot  be  assigned ; '  but  a  right  to  recover  dam- 
ages for  an  injury  to  property  may  undoubtedly  be  assigned.* 


efficiency  of  the  public  service  and 
is  void.  Granger  c.  French,  152 
Mich.  356. 

1  Stone  V.  Lidderdale,  2  Anst.  533; 
Elwyn's  Appeal,  67  Pa.  369;  State  v. 
Williamson,  118  Mo.  146;  Nat.  Bank 
of  EI  Paso  V.  Fink,  86  Tex.  303;  First 
Nat.  Bank  v.  State,  68  Xeb.  482; 
Emerson  r.  Hall,  13  Pet.  409;  .\r- 
buthnot  V.  Norton,  5  Moore,  P.  C.  C. 
219;  though  see  State  Bank  v.  Hast- 
ings, 15  Wis.  75,  and  Merivveather's 
Adm'r  v.  Herran,  8  B.  Mon.  162; 
Collyer  v.  Fallon,  1  Turn.  &  Russ. 
v459;  L'Estrange  r.  L'Estrange,  1 
Eng.  L.  &  Eq.  153;  Preddy  r.  Rose,  3 
Meriv.  102;  Tunstall  v.  Boothby,  10 
Sim.  542;  Flarty  v.  Odium,  3  T.  R. 
681;  Lidderdale  v.  Montrose,  4  Id. 
248;  Cooper  v.  Reilly,  2  Sim.  560; 
Holt  V.  Thurman,  111  Ky.  84;  Perry 
on  Trusts,  §  69,  notes  3  and  4;  King 
V.  Hawkins,  2  Ariz.  358.  The  as- 
signment of  the  unearned  part  of  his 
salary  by  a  public  officer  is  against 


public  policy  and  void.    McGowan  v. 
City,  118  La.  429. 

2  In  re  Worthington,  141  N.  Y.  9; 
Ljaide  v.  Lynde,  64  N.  J.  Eq.  736. 

3  Kerr  on  Injunctions,  479. 

^  See  Hughes  v.  Statham,  4  Barn. 
&  Cress.  187;  Messer  v.  The  Fadettes, 
168  Mass.  140;  Hegeman  v.  Hege- 
man,  8  Daly  (N.  Y.),  1;  Blakely  r. 
Sousa,  197  Pa.  305;  Skinner  v.  Oakes, 
10  Mo.  App.  45. 

5  Regan  Vapor  Engine  Co.  v.  Pa- 
cific Gas  Engine  Co.,  7  U.  S.  App.  73. 

6  Griffith  r.  Tower  Pub.  Co.,  Ltd. 
[1897],  1  Ch.  21. 

7  The  People  v.  Tioga,  19  Wend.  73. 
See,  also,  Morris  v.  McCulloch,  83  Pa. 
34;  Vermont  v.  C.  &  N.  W.  R.  Co., 
64  la.  513;  but  see  Dean  v.  Chandler, 
44  Mo.  App.  338;  Boogren  v.  St. 
Paul  Ry.  Co.,  97  Minn.  51.  Before 
judgment,  Weller  v.  Jersey  City  Ry. 
Co.,  68  N.  J.  Eq.  659. 

«  North  V.  Turner,  9  S.  &  R.  244; 
Butler  V.  The  Raikoad,  22  Barb.  110; 


CH.  VIII.] 


ASSIGNMENTS. 


265 


It  was  said  in  Mandeville  v.  Welch/  that  an  order  drawn  on  a 
fund  for  only  a  part  thereof,  does  not  amount  to  an  assignment 
of  that  part,  for  the  reason  that  a  creditor  shall  not  be  permitted 
to  split  up  a  single  cause  of  action  into  many  actions  without  the 
assent  of  his  debtor.  In  other  words,  the  rule  was  laid  down  that 
a  part  only  of  a  chose  in  action  cannot  be  assigned,  but  that  if 
there  is  any  transfer  there  must  be  a  transfer  of  the  whole.  But 
this  was  in  a  common-law  action ;  -  and  although  the  rule  has 
been  approved  in  several  cases,  it  cannot  be  considered  sound  as 
a  doctrine  of  equity.^ 

It  has  been  decided  in  many  cases  in  this  country  that  land 
held  adversely  cannot  be  assigned ;  and  it  has  been  further  held 
that  as  such  assignments  are  considered  void  on  the  ground  of 
public  policy,  they  ought  not  to  be  enforced  in  equity.'*  In  other 
states,  however,  the  rule  which  forbids  such  assignments  does 
not  prevail.^  An  assignment  of  wages  to  "become  due,"  when 
no  employment  exists  at  the  time,  is  void;^  but  where  there  is 
an  existing  employment,  it  is  otherwise.''' 


Missouri  Pac.  Ry.  Co.  v.  Cullers,  81 
Tex.  382.  See  Metropolitan  Ins.  Co. 
V.  Fuller,  61  Conn.  252;  Chouteau  v. 
Boughton,  100  Mo.  406. 

1  5  Wheat.  288. 

2  See  Dean  v.  St.  Paul  &  Duluth  R. 
R.  Co.,  53  Minn.  504,  and  Hopkins  v. 
Washington  County,  56  Neb.  696. 

3  See  Exchange  Bank  r.  McLoon, 
73  Me.  498;  Caldwell  i'.  Hartupee,  70 
Pa.  74,  79;  Appeals  of  the  City  of 
Philadelphia,  86  Id.  179;  Field  v.  The 
Mayor  of  New  York,  2  Seld.  179;  Ris- 
ley  V.  Phenix  Bank,  83  N.  Y.  318; 
Chambers  v.  Lancaster,  160  Id.  342; 
James  v.  Newton,  142  Mass.  366;  Mc- 
Daniel  v.  Maxwell,  21  Or.  202;  Kings- 
bury V.  Burrill,  151  Mass.  199;  Mc- 
Conaughey  v.  Bennett's  Ex'rs,  50 
W.  Va.  172;  Harris  County  v.  Camp- 
bell, 68  Tex.  22;  Avery  v.  Popper  & 
Bro.,  92  Tex.  337;  Carter  v.  Nichols, 
58  Vt.  553;  Peugh  v.  Porter,  112  U.  S. 
737;  Line  v.  McCall,  126  Mich.  497; 
Warren  v.  First  Nat.  Bank,  149  111. 
9;  Smith  v.  Bates  Machine  Co.,  182 
Id.  166;  Fourth  St.  Bank  v.  Yardley, 


165  U.  S.  644;  Hipwell  r.  Surety  Co. 
130  la.  656.  See,  however,  Chicago 
R.  Co.  V.  Nichols,  57  111.  467;  Chicago, 
B.  &  Q.  R.  R.  Co.  V.  Provolt,  42  Colo. 
103;  Jermyn  v.  Moffitt,  75  Pa.  399; 
Wamsley  r.  Ward,  61  W.  Va.  65; 
Tyler  r.  Tuel,  6  Cranch,  324;  John- 
son County  V.  Bryson,  27  Mo.  App. 
.341;  Bosworth  v.  Jacksonville  Nat. 
Bank,  24  U.  S.  App.  413  (where 
Mandeville  v.  Welch  was  applied). 
In  Rivers  v.  Wright  &  Co.,  117  Ga. 
81,  it  was  held  that  all  the  assignees 
must  be  made  parties. 

*  Hoppiss  V.  Eskridge,  2  Ired.  Eq. 
54. 

5  See  note  to  Ryall  r.  Rowles,  339; 
Edwards  v.  Parkhurst,  21  Vt.  472. 

8  Lehigh  Valley  R.  Co.  v.  Woodring, 
116  Pa.  513;  Kennedy  v.  Tiernay,  14 
R.  I.  528.  In  Maine  an  assignment 
of  wages  to  be  valid  against  any  other 
person  than  the  parties  thereto  must 
be  recorded.  R.  S.  1903,  c.  113,  §  6; 
Whitcomb  v.  City,  99  Me.  75. 

7  Tiernay  v.  McGarity,  14  R.  I.  231; 
Mallin    V.    Wenham,    209    111.    252; 


266 


ASSIGNMENTS, 


[part  I. 


167.  KequiHites  to  ait  equitable  assignment. 

No  particular  form  of  words  is  necessary  in  order  to  make  a 
valid  assignment  of  a  cJiose  in  action.^  Nor  is  any  written  in- 
stmment  required,  for  it  is  sufficient  if  there  is  a  verbal  declara- 
tion whereby  the  intention  to  part  with  the  ownership  of  the 
chose  is  properly  manifested.^  Thus,  if  A,  is  a  creditor  of  B,  and 
wishes  to  transfer  the  debt  to  C,  an  order,  verbal  or  w^ritten, 
from  A,  directing  B  to  pay  the  amount  due  to  C,  will  be  a  good 
ecjuitable  assignment. '"^ 

So,  also,  where  the  owner  of  goods,  then  in  the  hands  of  his 
agent,  promised  a  creditor  by  letter  that  he  woidd  direct  the 
agent  to  deliver  the  goods  to  the  creditor,  and  did  subsecjuently 
give  such  a  direction,  it  was  held  that  this  operated  as  an  equi- 
table assignment.'*  So,  likewise,  a  parol  agreement  to  transfer 
stock  as  collateral  security,  followed  by  the  execution  of  a  letter 
of  attorney  to  transfer  the  same,  has  been  held  to  amount  to  an 
assignment  of  the  stock  in  ecjuity.^ 

An  order  jjayable  out  of  a  particular  fund  may  operate  as  an 
assignment  of  the  fund ;  '^  either  in  whole  or  in  part ;  ^  and  so, 


Citizens'  Loan  Co.  v.  Boston  R.  R. 
'  o.,  196  Mass.  528;  Colorado  Fuel 
Co.  V.  Kidwell,  20  Colo.  App.  8: 
Peterson  r.  Ball,  121  la.  544;  Leitch 
V.  Northern  Pacific  Ry.  Co.,  95  Minn. 
35.  An  assignment  of  wages  to  be 
earned  in  the  future  under  an  exist- 
ing employment  i.s  valid.  Rodijkeit 
V.  Andrews,  74  Ohio  St.  104. 

1  Row  V.  Dawson,  supra;  Ex  parte 
Alderson,  1  Mad.  53;  Ex  parte  South, 
.3  Swanst.  392;  Thompson  v.  Speirs, 
13  Sim.  4G9;  East  Lewisburg  L.  &  M. 
Co.  r.  Marsh,  91  Pa.  100;  Gurnell  r. 
Gardner,  4  Giff.  626;  Buck  v.  Swazey, 
36  Me.  41;  Conway  v.  Cutting,  51 
N.  H.  407;  Tingle  v.  Fisher,  20  W. 
Va.  497. 

2  Gurnell  ?'.  Gardner,  9  Jur.  (x.  s.) 
1226;  Ford  v.  Stuart,  19  Johns.  342; 
Thompson  v.  Emery,  7  Foster,  269; 
Johnson  County  v.  Bryson,  27  Mo. 


App.  341;  Mclntyre  v.  Hauser,  131 
Cal.  11;  Weaver  v.  Atlantic  Roofing 
Co.,  57  N.  J.  Eq.  547. 

3  Yeates  v.  Groves,  1  Ves.  Jr.  281; 
Caldwell  v.  Hartupee,  70  Pa.  74. 

*  Burn  V.  Carvalho,  4  My.  &  Cr. 
690.  See,  also,  Langton  v.  Waring, 
18  Com.  B.  (x.  s.)  314;  Ex  parte  Mon- 
tague, 1  Ch.  D.  554;  Cabada  v.  De 
Jongh,  1  W.  N.  C.  342;  Kenneweg  r. 
Schilansky,  45  W.  Va.  521;  consult 
Clemson  v.  Davidson,  5  Binn.  398. 

sLightner's  Appeal,  82  Pa.  301; 
Taft  r.  Bowker,  132  Mass.  277,  case 
of  savings-bank  book. 

6  East  Lewisburg  L.  &  M.  Co.  v. 
Marsh,  91  Pa.  96;  Ex  parte  Butt,  4 
Ch.  D.  419;  Clark  r.  Muran,  3  Paige 
Ch..373;  McLellan  v.  Walker,  26  Me. 
114;  Cutts  V.  Perkins,  12  Mass.  206; 
Morton  v.  Xaylor,  2  Hill,  585;  Phil- 
lips V.  Stagg,  2  Edwards,  108;  Luff  v. 


7  Gillette  v.  Murphy,  7  Okla.  91; 
Dowling  V.  Seattle,  22  Wa.sh.  592. 
The    order   must   be    unconditional. 


Commercial  Nat.  Bank  v.  Portland, 
37  Ore.  33.  See,  also,  Sejinour  v. 
Aultman  Co.,   109  Iowa,  297. 


CH.  VIII.] 


ASSIGNMENTS. 


267 


also,  will  a  cheque  for  the  entire  deposit  of  the  drawer,  if  it  was 
intended  to  have  that  effect;^  but  the  better  opinion  would 
seem  to  be  that  a  mere  'promise  to  pay  out  of  a  fund  will  not.- 
The  first  branch  of  this  proposition  seems  to  be  well  supported  by 
authority,^  but  as  to  the  latter  there  has  been  some  fluctuation 
of  opinion,  although  the  more  recent  decisions  in  the  United 
States  decidedly  support  it.  As  long  ago  as  1744  it  was  decided 
in  Bradley's  case  "*  that  a  promise  to  pay  a  debt  out  of  a  sum  due 
by  a  third  person  does  not  create  a  specific  lien  upon  such  sum. 
Lord  Hardwicke  refusing  a  prayer  for  an  injunction  to  stay  the 
money  in  the  debtor's  hands  and  saying  that  "he  would  not  lay 
such  embargoes  upon  persons  to  prevent  their  paying  their 
debts."  But  in  Rodick  v.  Gandell  ^  there  is  a  dictum  by  Lord 
Truro  to  the  effect  that  a  promise  to  pay  out  of  a  particular  fund 
would  operate  as  an  assignment,  and  this  was  followed  by  a  de- 
cision of  Vice-Chancellor  Wood,^  and  the  tendency  of  the  Eng- 
lish decisions  would,  therefore,  seem  to  be  in  favor  of  holding  a 
promise  to  operate  as  an  assignment.  In  the  L^nited  States,  how- 
ever, the  weight  of  authority  is,  perhaps,  the  other  way.  The 
authorities  were  reviewed  in  Ex  parte  Tremont  Nail  Company,^ 
and  a  conclusion  adverse  to  the  decision  in  Riccard  i".  Prichard 
reached;®  but  in  Clark  v.  Sigua  Iron  Co.,^  Moeser,  Admtr.,  v. 


Pope,  5  Hill,  413;  Nesmith  v.  Drum, 
8  W.  &  S.  9;  Ferrari's  Estate,  1  Asm. 
319;  Caldwell  v.  Hartupee,  70  Pa.  74; 
PhcEnix  Iron  Co.  v.  Philadelphia,  2 
W.  N.  C.  596;  Cabada  v.  De  Jongh,  1 
Id.  342;  Slobodisky  v.  Curtis,  58 
Neb.  211 ;  Pollard  v.  Pollard,  68  N.  H. 
356;  Leupold  v.  Weeks,  96  Md. 
280. 

1  Taylor's  Estate,  Ruffell's  Appeal, 
154  Pa.  183. 

2  Rogers  v.  Hosack,  18  Wend.  319; 
Ex  parte  Tremont  Nail  Co.,  16  Nat. 
Bank  Reg.  460. 

^  See  Diplock  v.  Hammond,  2  Sm. 
&  G.  141;  5  De  G.,  M.  &  G.  320;  Gur- 
nell  V.  Gardner,  4  Giff.  626;  Hunt  ?'. 
Mortimer,  10  B.  &  C.  44;  Ex  parte 
Carlon,  4  Dea.  &  Chitty,  120;  Bank 
of  United  States  v.  Huth,  4  B.  Mon. 
423;  Newby  v.  Hill,  2  Met.  (Ky.)  5.30; 


Richardson  r.  Rust,  9  Paige  Ch.  243; 
Patten  v.  Wilson,  34  Pa.  299;  Chase 
V.  Petroleum  Bank,  66  Id.  169;  Larra- 
bee  V.  Hascall,  88  Me.  511. 
^  Ridge  way,  194. 

5  1  De  G.,  M.  &  G.  763. 

6  Riccard  v.  Prichard,  1  K.  &  J. 
277.  See,  also.  Field  v.  Magaw,  L.  R. 
4  C.  P.  660;  Thompson  v.  Simpson, 
L.  R.  5  Ch.  659. 

^  16  Nat.  Bank  Reg.  451. 

8  See,  also,  Hoyt  v.  Story,  3  Barb. 
262;  Geist's  Appeal,  104  Pa.  355; 
Christmas  v.  Russell,  14  Wall.  69; 
Trist  V.  Child,  21  Id.  441;  Thomas  v. 
N.  Y.  &  Greenwood  Lake  Ry.  Co., 
139  N.  Y.  163;  Christmas  i\  Griswolii, 
8  Ohio  St.  558;  Connely  v.  Harrison, 
16  La.  Ann.  41;  Eib  r.  Martin,  5 
Leigh,  1.32;  Ford  v.  Garner,  15  Ind. 
298;  Pearce  v.  Roberts,  27  Mo.  179; 


9  39  U.  S.  App.  753. 


2G8 


ASSIGNMENTS, 


[part  I. 


Schneider/  and  Harlow  v.  Bangor,^  the  promises  to  pay  were, 
under  the  circumstances,  held  ecjuivalent  to  assignments. 

A  simple  draft,  not  identifying  any  particular  debt  or  fund, 
will  not  be  an  assignment ;  ^  and  a  cheque  against  a  general  ac- 
count will  not,  alone,  operate  as  an  assignment.'*  But  while  an 
equitable  assignment  or  lien  will  not  arise  against  a  deposit  ac- 
count solely  by  reason  of  a  cheque  drawn  against  the  same,  yet 
the  authorities  establish  that  if  in  the  transaction  connected  with 
the  delivery  of  the  cheque  it  was  the  understanding  and  agree- 
ment of  the  parties  that  an  advance  about  to  be  made  should  be 
a  charge  on  and  satisfied  out  of  a  specified  fund,  a  court  of  equity 
will  lend  its  aid  to  carry  such  agreement  into  effect  as  against  the 
drawer  of  the  cheque,  mere  volunteers,  and  parties  charged  with 
notice.^ 


Benford  v.  Sanner,  40  Pa.  9;  Lamon 
V.  McKee,  18  Dist.  Col.  446,  462; 
Lanigan  v.  Bradley  Co.,  50  N.  J.  Eq. 
201;  American  Pin  Co.  v.  Wright,  60 
N.  J.  Eq.  147;  Fairbanks  v.  Welshaus, 
55  Neb.  362;  Hossack  v.  Graham,  20 
Wash.  184;  Hanchey  v.  Hurley,  129 
Ala.  306;  Cameron  v.  Boeger,  200  111. 
84;  Phillips  v.  Hogue,  63  Neb.  192; 
Weiss  V.  Gullett,  18  Colo.  App.  122. 
See,  however,  Greenfield's  Estate,  24 
Pa.  322. 

1 158  Pa.  412. 

2  96  Me.  294. 

3  Farmers'  and  Mechanics'  Ins.  Co. 
V.  Simmons,  30  Pa.  299;  Bank  of 
Mount  Joy  v.  Gish,  72  Id.  13.  See, 
also,  Jermyn  v.  Moffitt,  75  Id.  399; 
Hopkins  r.  Beebo,  26  Id.  85;  Loyd  v. 
McCaffrey,  46  Id.  410;  Com.  ex  rel. 
Att.-Gen.  v.  American  Life  Ins.  Co., 
162  Pa.  586;  Laclede  Bank  ?'.  Schuler, 
120  U.  S.  514;  Baer  r.  English,  84 
Ga.  403;  Erickson  v.  Inmun,  34  Ore. 
44. 

*  Hopkinson  v.  Forster,  L.  R.  19 
Eq.  74;  Citizens'  Bank  v.  First  Nat. 
Bk.,  L.  R.  0  H.  L.  352;  Akin  r.  Jones, 
93  Tenn.  353;  Henderson  &  Co.  v. 
United  States  Nat.  Bank,  59  Neb. 
280;  Perry  v.  Bank,  131  N.  C.  117; 
PuUen  V.  Placer  Co.  Bk.,  138  Cal.  169. 


As  to  its  effect  between  the  parties, 
see  Hulings  v.  Hulings  Lumber  Co., 
38  W.  Va.  351;  Love  v.  Ardmore 
Stock  Exchange,  5  Ind.  Ter.  202; 
contra,  Kuhnes  v.  Cahill,  128  la.  594; 
Clark  V.  Bank,  72  Kan.  1. 

The  giving  of  a  check  on  a  bank  in 
the  ordinary  form  does  not  consti- 
tute an  equitable  assignment  pro 
tanto  of  an  indebtedness  owing  by 
the  bank  to  the  drawer,  nor  does  the 
fact  that  the  check  was  presented, 
where  it  was  not  paid  nor  accepted, 
entitle  the  holder  to  priority  of  pay- 
ment, on  the  drawer's  subsequent  in- 
solvency, from  a  fund  due  from  the 
bank  or  collected  by  a  receiver. 
Eastern  Milling  Co.  v.  Eastern  Ex- 
port Co.,  146  Fed.  Rep.  761. 

5  Fourth  Street  Bank  v.  Yardley, 
165  U.  S.  644.  See,  also,  Coates  v. 
First  Nat.  Bank  of  Emporia,  91  N.  Y. 
26;  Throop  Grain  Cleaner  Co.  v. 
Smith,  110  Id.  83;  First  Nat.  Bank 
V.  Clark,  134  Id.  368;  First  Nat.  Bank 
1'.  Dubuque,  etc.,  Ry.,  52  Iowa,  378; 
Harrison  r.  Wright,  100  Ind.  515; 
Shand  v.  Du  Buisson,  L.  R.  18  Eq. 
283.  The  mere  giving  of  a  check  on 
an  ordinary  deposit  account  in  a 
bank,  in  the  usual  course  of  business, 
in  payment  of  a  past  indebtedness, 


I 


CH.  VIII.] 


ASSIGNMENTS. 


269 


And  so  a  mere  direction  to  an  agent  to  collect  money  and 
hand  it  over  to  a  third  party,  will  not  amount  to  an  assignment. 
Thus  a  railway  contractor,  being  indebted  to  his  bankers,  wrote 
to  the  solicitors  of  the  company  authorizing  them  to  receive  the 
money  due  to  him  from  the  company,  and  pay  it  over  to  his 
bankers — and  the  solicitors  then  wrote  to  the  bankers  pi  omising 
to  pay  them  the  money  when  raised;  but  it  was  held  that  this 
did  not  operate  as  an  equitable  assignment.^  The  difference  be- 
tween an  order  which  will,  and  one  which  will  not  operate  as  an 
assignment,  appears  to  be  this :  If  the  order  is  such  as  to  create  a 
mere  agency  in  the  party  to  whom  it  is  given  to  transfer  the 
chose  on  behalf  of  the  principal,  then,  like  every  other  power  of 
attorney,  it  will  be  revocable  at  pleasure,  and  can  confer  no 
title  upon  the  third  party  until  the  transfer  is  actually  made. 
But  where  the  order  purports  to  pass  a  present  interest  in  the 
chose  to  the  alleged  transferee,  then,  no  matter  what  form  the 
transaction  may  assume,  it  will  be  treated  in  equity  as  a  valid 
assignment.^  Moreover,  the  mere  delivery. of  the  written  evi- 
dence of  the  debt  may,  under  certain  circumstances,  operate  as  a 
valid  equitable  assignment.^  It  was  accordingly  held,  in  a  recent 
case  in  Massachusetts,  that  the  delivery  of  a  policy  of  insurance, 
for  a  valuable  consideration,  with  the  intent  to  vest  title  in  the 
assignee,  operated  as  a  valid  transfer;  and  that  the  failure  to 
obtain  the  insurance  company's  consent  to  the  assignment,  al- 
though it  might  defeat  the  claim  on  the  policy  against  the  com- 
pany, did  not  defeat  the  transfer.'' 


does  not  amount  to  an  equitable  as- 
signment, even  though  the  drawer 
makes  a  deposit  expressly  to  cover 
the  check;  and  a  garnishment  of  the 
bank,  after  other  deposits  have  been 
made  and  checks  given,  but  before 
such  check  has  been  presented, 
creates  a  lien  on  the  deposit  superior 
to  the  rights  of  the  payee.  Poland  v. 
Love,  164  Fed.  Rep.  186. 

» Rodick  V.  Gandell,  1  De  G.,  M.  & 
G.  763.  See,  also,  Burger  v.  Burger, 
135  Pa.  499;  Nebraska  Moline,  etc., 
Co.  V.  Fuehring,  60  Neb.  316. 

2  See  Hunt  v.  Rousmanier's  Adm'rs, 
8  Wheat.  174;  1  Am.  Lead.  Cas.  676; 
Smith  V.  Bates  Machine  Co.,  182  111. 


166;  Beers  v.  Spooner,  9  Leigh,  153; 
Tiernan  v.  Jackson,  5  Pet.  580;  Wat- 
son V.  Bagaley,  12  Pa.  164;  Beans  v. 
Bullitt,  57  Id.  221;  Insurance  Co.  of 
Pennsylvania  v.  Phoenix  Ins.  Co.,  71 
Id.  34;  Keys's  Estate,  137  Id.  565; 
Wright  V.  Ellison,  1  Wall.  22;  notes 
to  Ryall  V.  Rowles,  2  Lead.  Cas.  Eq 
777. 

3Mowry  v.  Todd,  12  Mass.  281 
Runyan  v.  Mersereau,  11  Johns.  534 
Jenkins  ?».  Wilkinson,  113  N.  Car 
532;  note  to  Row  v.  Dawson,  358. 

*  Hewins  v.  Baker,  161  Mass.  320 
See,  also,  Higgins  v.  Lansingh, 
Adm'tr,  154  111.  301,  a  case  of  a 
certificate  of  stock. 


270 


ASSIGNMENTS. 


[part  I. 


168.  When  notice  of  assignment  necessary  ;  to  whom 
given. 

In  order  to  complete  the  assignment  as  against  the  assignor, 
the  assignee  need  not  give  notice  thereof  to  the  person  who  owes 
the  debt,  or  has  the  custody  of  the  fund  which  is  intended  to  be 
assigned.'  Thus,  where  a  letter  was  written  in  this  language: 
"We  hold  at  your  disposal  the  sum  of  £425,  due  from  Messrs. 
C.  &  Co.,  for  goods  deUvered  by  us  to  them,"  it  was  held  that  this 
operated  as  an  assignment  of  the  debt  as  against  the  assignor  and 
as  against  the  official  liquidator  in  bankruptcy  proceedings,  al- 
though no  notice  had  been  given  by  the  assignee  to  C.  &  Co.^ 

And  this  is  also  so  as  against  the  creditors  of  the  assignor,^  or 
mere  volunteers.'* 

But  as  against  subsequent  assignees  for  value,  the  assignee 
first  in  point  of  time  must  give  notice  to  the  debtor,  otherwise 
he  will  be  liable  to  be  postponed  to  a  second  or  third  assignee, 
who  has  given  notice.  Between  different  assignees,  the  one  who 
first  gives  notice  to  the  debtor  will,  as  a  general  rule,  have  the 
prior  right.'^    This  is  only  in  obedience  to  the  general  principle, 


1  Donaldson  v.  Donaldson,  Kay, 
711;  Way's  Trusts,  2  De  G.,  J.  &  Sm. 
365;  Rodick  v.  Gandell,  1  De  G.,  M.  & 
G.  780;  Gurnell  v.  Gardner,  4  Giff. 
626;  Burn  v.  Carvalho,  4  My.  &  Cr. 
690;  Jackson  v.  Hamm,  14  Colo.  58; 
Board  of  Education  v.  Duparquet,  50 
N.  J.  Eq.  234-242;  Pollard  v.  Pollard, 
68  N.  H.  356. 

2  Gorringe  r.  Irwell  India  Rubber 
Works,  34  Ch.  D.  128. 

■'  Beavan  v.  Lord  Oxford,  G  De  G., 
M.  &  G.  492;  Eyre  v.  McDowell,  9  H. 
L.  Cas.  628,  652;  Scott  v.  Lord  Hast- 
ings, 4  K.  &  J.  633;  Pickering  v.  The 
Ilfracombe  Railway  Co.,  L.  R.  3  C.  P. 
235;  Crow  v.  Robinson,  Id.  264;  The 
People  r.  Elmore,  35  Cal.  653;  Kort- 
right  1'.  Buffalo,  20  Wond.  91;  22  Id. 
348;  McNeil  ?".  The  Tenth  Nat.  Bank, 
46  N.  Y.  328;  Grymes  v.  Hone,  49  Id. 
17,  22;  The  Mt.  Holly  Co.  r.  Ferree, 
17  N.  J.  Eq.  117;  United  States  v. 
Vaughan,  3  Bin.  394;  Pcllman  ?;. 
Hart,  1  Pa.  263;  Marsh  v.  Garney,  69 
N.    H.    236;   Pollard   v.   Pollard,    68 


N.  H.  356;  Walton  v.  Horkan,  112 
Ga.  814.  See  Pinkerton  v.  Manch. 
&  Lawr.  R.  Co.,  42  N.  H.  424,  and 
Comm.  V.  Watmough,  6  AVhart.  117, 
as  to  the  steps  necessary  to  complete 
the  transfer  of  a  chose  in  action,  as 
against  the  creditors  of  the  assignor. 
These  authorities  are  in  conflict.  In 
New  Hampshire,  by  statute,  accep- 
tance of  an  order  must  be  in  writing. 
Berlin  Mills  Co.  v.  Poole,  62  N.  H. 
439.  See,  also,  Elliott's  Ex'rs  App., 
50  Pa.  75;  post,  Fraud  on  Cred- 
itors. 

4  Justice  V.  Wynne,  12  Ir.  Ch.  R. 
289;  Comm.  v.  Crompton,  137  Pa. 
138;  Phillips's  Estate  (No.  4),  205 
Pa.  525.  Note  in  this  case  a  curious 
result  which  followed  the  application 
of  the  doctrine. 

5  Methfessel's  Ex't'r  v.  Atlantic 
Trust  Co.,  35  U.  S.  App.  67;  Phillips's 
Est.,  205  Pa.  525,  citing  the  text; 
Trexler  v.  Kuntz,  36  Pa.  Sup.  352. 
See,  also,  Eng.  Scot.  Mer.  Trust  v. 
Brunton  [1892],  2  Q.  B.  1;  aff'd  Id. 


CH.  VIII.]  ASSIGNMENTS.  271 

which  requires  that  all  transfers  of  property  must  be  rendered 
as  complete  as  the  nature  of  the  transaction  will  permit,  in  order 
to  make  them  valid  as  against  subsequent  bona  fide  purchasers, 
for  valuable  consideration,  without  notice. 

Thus  in  the  case  of  personal  chattels,  possession  must  be  taken. 
And  so  in  the  case  of  choses  in  action,  that  which  is  equivalent  to 
possession,  viz.,  notice  to  the  debtor,  must  exist,  as  a  general 
rule,^  in  order  to  give  the  assignee  a  perfect  title.  In  other 
words,  the  assignee  must  do  everything  to  assert  the  ownership 
which  the  nature  of  the  subject-matter  of  the  contract  will 
allow.^ 

But  the  assignee  is  not  required  to  do  more  than  is  reasonably 
necessary.^ 

The  assignee  of  a  debt  is  not  bound  to  give  notice  to  the  as- 
signor if  it  is  not  paid.  The  rule  which  exists  as  to  promissory 
notes,  in  such  cases,  does  not  apply.'* 

The  party  to  whom  notice  of  an  assignment  should  be  given 
is  he  who  has  the  legal  title,  or  who  owes  the  money.  Thus,  if 
personalty  vested  in  trustees  is  assigned,  notice  should  be  given 
to  the  trustees;^  if  a  debt,  to  the  debtor;  if  stock  in  a  public 

700;  Donnelly  v.  Johnes,  58  N.  J.  Eq.  purchaser  who  perfects  his  right  bj- 

442;    Lumber   Co.   v.    Newcomb,    79  obtaining  a  transfer  on  the  books  of  a 

Miss.  462.  corporation   will   be    preferred    to   a 

'  For  an  exceptional  case  see  In  re  prior   purchaser   who   has   been   less 

Richards,  45  Ch.  D.  595.     See,  also,  diligent     or    fortunate."       Note     to 

Moore  v.  North  Western  Bank  [1891],  Ryall  v.   Rowles,   2   Lead.   Cas.   Eq. 

2  Ch.  599,  and  the  remarks  of  Lord  1665  (4th  Am.  ed.);  The  New  York 

Selbourne,    in    Societe    Generale    de  &  New  Haven  R.  R.  Co.  v.  Schuyler, 

Paris  V.  Walker,  11  App.  Cas.  30,  as  34  N.  Y.  30;  The  People  v.  Elmore,  35 

to  transfers  of  shares.  Cal.  653;  The  Bank  of  Commerce's 

2  See  ante,  §  66.    See,  also,  Milroy  Appeal,  73  Pa.  59;  Sabin  v.  The  Bank 

V.  Lord,  4  De  G.,  F.  &  J.  264;  Warri-  of  Woodstock,  21  Vt.  353;  Shipman 

ncr   V.  Rogers,  28   Law  Times  Rep.  v.  The  ^tna  Ins.  Co.,  29  Conn.  245; 

(n.  s.)  863;  Ryall  v.  Rowles,  1  Ves.  Colt  v.  Ives,  31  Id.  55;  Pinkerton  v. 

Sr.  348;  Dearie  v.  Hall,  Loveridge  v.  The  Manchester  &  Lawrence  R.  R. 

Cooper,    3    Rus.    1;    Brittin    v.    Par-  Co.,   42   N.   H.   424.     See,   however, 

tridge  [1899],    1    Ch.    163;   Spain   v.  Mount  Holly  Co.  v.  Ferree,  17  N.  J. 

Hamilton's  Adm'r,  1  Wall.  624;  Mar-  Eq.  117. 

tin  V.  Sedgwick,  9  Beav.  333;  Buller  3  Feltham  v.  Clark,  1  De  G.,  &  Sm. 

V.  Plunkett,  1  John.  &  H.  441;  In  re  307. 

Barr's  Trusts,   4   K.   &  J.   219;  Ex  <  Glyn  v.  Hood,  1  De  G.,  F.  &  J. 

parte  Caldwell,    L.   R.    13   Eq.    188;  334. 
2  Lead.  Cas.  Eq.  1661,  1665  ct  seq.  5  Stephens  v.  Green  [1895],   2  Ch. 

In  the  case  of  stock,  "the  better  148;  In  re  Phillips's  Trusts  [1903],  1 

opinion   would   seem   to   be   that   a  Ch.  183. 


272 


ASSIGNMENTS. 


[part  I. 


company,  to  the  company;  if  a  future  cargo  of  a  ship,  to  the 
master.'  If  the  fund  to  be  assigned  is  in  court,  according  to 
the  English  practice  a  stop  order  should  be  obtained.^  Notice 
to  one  of  several  trustees  or  joint  debtors  is  in  general  notice 
to  all ;  and  notice  may  be  by  parol. ^ 


169.  Authorities  in  United  States  on  this  subject  con- 
flicting. 

The  rule  that  in  order  to  protect  the  title  of  an  equitable  as- 
signee as  against  a  subsequent  assignee,  notice  of  the  assign- 
ment should  be  given,  is  one  that  is  based  upon  sound  principle, 
and  would  seem,  for  many  obvious  reasons,  to  commend  itself 
for  adoption.'*  It  has  accordingly  been  followed  in  many  de- 
cisions in  the  United  States.^'  But  in  quite  a  number  of  cases 
a  different  doctrine  has  been  held,  and  it  is  therefore  impossible 
to  say  that  any  general  rule  upon  the  subject  exists  in  this 
country.^  The  decisions  in  favor  of  the  English  rule,  however, 
appear  to  be  based  upon  the  more  correct  view  of  the  law  on  the 
question.'^ 

The  assignment  of  a  chose  in  action  cannot  be  enforced  by  a 
mere  volunteer,  unless  the  transaction  has  so  far  progressed  as 
to  have  assumed  the  nature  of  a  voluntary  trust,  the  incidents 
of  which  have  already  been  discussed.** 

If  there  is  a  mere  executory  agreement  to  assign,  that  agree- 
ment, like  any  other,  must  be  supported  by  a  consideration;" 
but  if  a  consideration  exists,  a  covenant  to  assign  will  operate 
as  an  assignment.^" 


1  See  note  to  Ryall  ?'.  Rowles,  2  « gee  American  note  to  Ryall   v. 


Lead.  Ca.s.  Eq.  1665  (4th  Am.  ed.). 

2  Id.  1591. 

3  Id.  1588. 

<  Jack  V.  National  Bank,  17  Okla 
430. 

5  Vanbuskirk  v.  The  Hartford  Ins 
Co.,  14  Conn.  145;  Campbell  r.  Daj' 
16  Vt.  558;  Loomis  v.  I.oomis,  26  Id 
198;  Clodfelter  v.  Cox,  1  Snoed,  330 
McWilliams  v.  Webb,  32  la.  577 
Murdoch  r.  Finney,  21  Mo.  138 
Woodbridge  v.  Perkins,  3  Day,  364 
Niles  V.  Mathusa,  162  N.  Y.  546 
Central  Trust  Co.  v.  West  India  Imp 
Co.,  169  N.  Y.  314. 


Rowles,  2  Lead.  Cas.  Eq.  1605; 
Fortunato  v.  Patten,  147  N.  Y.  277; 
Meier  v.  Hess,  23  Oreg.  599. 

7  This  statement  of  the  law  was 
approved  in  Phillips's  Estate,  205  Pa. 
525. 

8  See  Lennig's  Estate,  182  Pa.  495. 

9  Notes  to  Ryall  i\  Dawson.  See 
Kennedy  v.  Ware,  1  Pa.  450,  where 
Chief  Justice  Gibson  seemed  to  think 
that  all  assignments  were  in  their 
nature  executory,  and  should  be  sup- 
ported by  a  consideration. 

10  Townshend  v.  Windham,  2  Ves. 
Sr.  6. 


4 


CH.  VIII.]  ASSIGNMENTS.  273 

1 70.  Effect  of  equitable  assignments ;  as  to  original  parties. 

The  effect  of  these  equitable  assignments  is  next  to  be  noticed. 

And  first,  it  must  be  remarked  that  the  assignee  will  take  the 
c/(o.se  subject  to  all  the  equities  between  the  original  parties. 
Thus  if  the  debtor  has  any  defence  or  set-off  which,  at  the  time 
of  the  assignment,  would  be  good  as  against  the  assignor,  the 
same  defence  can  be  taken,  or  the  same  set-ofT  made  use  of  as 
against  the  assignee.^  Moreover,  it  is  obvious  that  the  assign- 
ment of  anything  that  is  coming  to  one  party  to  a  contract,  is 
necessarily  subject  to  the  conditions  of  that  contract,  and  to 
the  rights  of  the  other  party  thereto,  whatever  they  may  be.^ 
But  new  equities  arising  or  defences  accruing  after  the  assign- 
ment, are  excluded;^  and,  moreover,  the  debtor  may,  by  his 
conduct,  estop  himself  from  taking  advantage  of  such  a  defence 
or  set-off,  if  he  actively  misleads  the  assignee  as  to  its  existence, 
or  improperly  remains  silent  when  fair  dealing  would  command 
him  to  speak.  "* 

Another  case  in  which  the  assignee  will  not  take  subject  to 
equities  is  that  of  negotiable  paper;  but  this  is  not  so  much  an 
exception  to  the  general  rule,  as  a  particular  custom,  growing 
out  of  the  law  merchant  in  the  case  of  bills  of  exchange,  and  ex- 
tended to  {)romissory  notes  by  the  Statute  of  3  and  4  Anne.  . 

The  assignee  cannot  be  affected  by  collateral  transactions, 
secret  trusts,  or  acts  unconnected  with  the  subject  of  the  con- 
tract.^ His  title,  however,  is  subject  to  the  assertion  of  any  right 
or  title  which  is  paramount  to  the  title  of  his  assignor;  as  (for 

1  Turton  v.  Benson,  1  P.  Wms.  497;  N.  Y.  486;  Bishop  v.  Chase,  156  Mo. 
In  re  Natal  Investment  Co.,  L.  R.  3       158. 

Ch.  .355;  Bebee  v.  The  Bank  of  New  ^  In    re    Agra    and    Mastermans' 

York,  1  Johns.  529;  Kamena  v.  Huel-  Bank,  L.  R.  2  Ch.  391;  In  re  General 

big,  23  N.  J.  Eq.  78;  Magie  v.  RejTi-  Estates  Company,  L.  R.  3  Id.  758 

olds,   51    N.   J.   Eq.    113;  Jeffries  v.  Jones  v.  Hardesty,  10  G.  &  J.  404 

Evans,  6  B.  Mon.  119;  The  Bank  v.  Decker  v.  Eisenhauer,  1  P.  &  W.  476 

Fordyce,  9  Pa.  275;  Andrews  v.  Mc-  Sargeant    ?'.    Sargeant,    18   Vt.    371 

Coy,  8  Ala.  920;  Ragsdale  v.  Hagy,  9  Middletown     Bank    v.    Jerome,     18 

Gratt.  409;  Barney  v.  Grover,  28  Vt.  Conn.   443;   Watson's   Ex'rs  v.   Mc- 

391 ;  Lewis  r.  Holdredge,  56  Neb.  379;  Laren,  19  Wend.  557;  and  see  post, 

American  note  to  Ryall  v.  Rowles,  2  Part  II.,  Chap.  III.,  Estoppel. 

Lead.  Cas.  Eq.  1671;  1   Parsons  on  5  Davis  v.   Barr,   9  S.   &  R.   137; 

Contracts,    227;    McCaskill    v.    Sav.  Beckley  v.  Eckert,  3  Pa.  292;  Mott  v. 

Bank,  60  Conn.  300;  Klatt  v.  Dum-  Clark,  9  Id.  399;  Taylor  v.  Gitt,  10 

mert,  70  Minn.  467.  Id.  428;  Corson  v.  Craig,  1  Wash.  C. 

2  Tooth  V.  Hallett,  L.  R.  4  Ch.  245. .  C.  424;  First  Nat.  Bk.  v.  Ferris  Irri- 

3  Merchants'    Bank    v.    Weill,    163  gation  Dist.,   107  Cal.   55;  Mohr  v. 

18 


274  ASSIGNMENTS.  [PART   I. 

example)  if  a  distributee  under  the  intestate  laws  were  to  trans- 
fer his  interest  in  an  asset  of  the  intestate's  estate,  the  title  of  the 
transferee  would  not  be  good  as  against  the  administrator.^ 

171.  Effect  as  to  third  parties. 

It  has  been  decided  in  some  cases  that  the  a"ssignee  of  a  chose 
in  action  will  take  it  subject  not  only  to  the  equities  between  the 
original  parties  to  the  contract,  but  also  to  existing  equities  in 
favor  of  third  persons.^  Thus,  where  there  are  two  successive 
purchasers  of  the  same  equitable  interest,  the  second  purchaser, 
according  to  the  authorities  just  cited,  will  take  subject  to  the 
rights  of  the  first.  On  the  other  hand,  there  are  not  wanting 
opinions  to  the  effect  that  the  assignee  of  a  chose  in  action  is  only 
subject  to  the  equities  of  the  party  bound  by  its  obligation  (the 
debtor),  and  not  to  those  of  prior  assignees.'  The  true  solution 
of  the  difficulty  would  appear  to  be  found  in  correctly  applying 
the  maxim  that  between  equal  equities  priority  of  time  will  pre- 
vail,"*  the  meaning  of  which  is,  that  as  between  persons  having 
only  equitable  interests,  if  such  equities  are  in  all  other  respects 
equal,  qui  prior  est  tempore  potior  est  jure.^  If  there  is  nothing 
else  in  the  case  to  turn  the  scale,  and  the  only  fact  before  the 
court  is  the  bald  fact  of  priority  of  time,  that,  of  course,  will  be 
conclusive.  But  in  practice  this  is  scarcely  ever  the  case.  It 
almost  universally  happens  that  two  other  questions  have  to  be 
taken  into  consideration — the  question  of  laches,  and  that  of 
notice.^     If  the  first  purchaser  has  been  guilty  of  laches,^  his 

Byrne,  135  Id.  87;  Tate  v.  Security  68   Id.  212;   Metzgar   v.   Metzgar,  1 

Trust  Co.,  63  N.  J.  Eq.  559;  Himrod  Rawle,  227;   Moore   v.  Holcombe,  3 

V.  Gilman,    147  111.  293;  Schultz  v.  Leigh,  597;  Church  Building  Society 

Sroclowitz,  191  Id.  249.  v.  Free  Church,  24  Wash.  433;  note 

1  Pritchard  v.  Norwood,  15  Mass.  to  Ryall  v.  Rowles,  2  Lead.  Cas.  Eq. 
539.  1672. 

2  Bush  V.  Lathrop,  22  N.  Y.  535;  *  Ante,  §  45;  Phillips  v.  Phillips,  10 
Central  Trust  Co.  v.  West  India  Imp.  W.  R.  236. 

Co.,  169  Id.  314;  Schafer  v.  Reilly,  50  5  See  SnelJ's  Equity,  17,  and  Rice  v. 

Id.  67;  Patterson  v.  Rabb,  38  S.  Car.  Rice,  2  Drew.  73,  where  the  subject 

138;  Westbury  v.  Simmons,  57  S.  C.  is  clearly  discussed  by  V.  C.  Kind- 

467;  Brown  v.  Equitable  Life  Assur.  ersley. 

Soc,  75  Minn.  412;  note  to  Ryall  v.  «  Rice  r.  Rice,  nt  nup.     See,  also, 

Rowles,  2  Lead.  Cas.  Eq.  1672.  Lloyd's   Bank,    Limited,    v.    Bullock 

3  Livingston  v.  Dean,  2  Johns.  Ch.  [1896],  2  Ch.  197. 

479;    Murray    i\    Lylburn,    Id.    441;  ^  it  need  not  amount  to  fraud.   Far- 

Taylor  V.  Gitt,  10  Pa.  428;  .Mott  r.  rand  v.  Yorkshire  Banking  Co.,  40 
Clark,  9  Id.  399;  Mullison's  Estate,      Ch.  D.  188;  though  see  the  language 


I 


CH.  VIII.]  ASSIGNMENTS.  275 

equity  becomes  inferior  to  that  of  the  second  purchaser,  and  the 
equity  of  the  latter  will  then  prevail;  for  priority  of  time  is  the 
last  ground  of  preference  resorted  to,  and  will  never  be  considered 
if  there  is  anything  else  to  turn  the  scale. ^  On  the  other  hand, 
the  second  purchaser  may,  under  the  circumstances  of  the  par- 
ticular case,  be  in  a  condition  to  avail  himself  of  the  plea  of  a 
bona  fide  purchaser  for  value  without  notice ;  and  it  is  now  well 
settled  that  such  a  plea  is  available  for  the  protection  of  an 
equitable,  as  well  as  a  legal  title. ^ 

Therefore,  in  examining  into  the  relative  merits  (or  equities) 
of  two  persons  having  adverse  equitable  interests,  the  points  to 
which  attention  must  be  directed  are  these :  the  nature  and  con- 
dition of  their  respective  eciuitable  interests;  the  circumstances 
and  manner  of  their  acquisition ;  and  the  whole  conduct  of  each 
party  with  respect  thereto.^  If  the  inquiry  be  directed  to  these 
grounds,  a  decision  on  the  narrow  point  of  priority  of  time  will 
seldom,  if  ever,  be  found  necessary. 

172.  Rights  of  action  of  assignee  at  law  ;  in  equity. 

Another  effect  of  the  assignment  is  that  the  assignee  acquires 
thereby  the  right  to  make  use  of  the  name  of  the  assignor  in  an 
action  at  law  to  recover  the  chose.  The  suit  must  be  brought  in 
the  name  of  the  original  assignor  to  the  use  of  the  assignee ;  and 
courts  of  law  now  entertain  such  an  action,  and  a  recovery  may 
thus  be  had  in  a  common-law  suit.  The  consequence  of  this 
right  of  the  assignee  to  use  the  name  of  the  assignor  is,  that  a 
court  of  equity  will  not  ordinarily  entertain  a  bill,  in  the  first 
instance,  filed  by  the  assignee  against  the  debtor  simply  for  the 
purpose  of  recovering  the  debt.  Thus,  if  A  is  a  creditor  of  B, 
and  transfers  the  debt  to  C,  this  circumstance  alone  will  not 
justify  C  in  filing  a  bill  in  equity  against  B  to  recover  the  .sum 
due.  C's  remedy,  in  the  first  instance,  is  a  common-law  action 
brought  against  B  in  A's  name  to  C's  use.^    If,  however,  A  in- 

of  Kay,  J.,  in  Taylor  V.  Russell  [1891],  Eq.  105,  and  Judson  v.  Corcoran,  17 

1  Ch.  8.  How.    612.      Sec,    however.    Central 

iRice  V.   Rice,   2  Drew.   73;  The  Trust  Co.  v.  West  India  Imp.  Co.,  169 

Queen  v.  Shropshire  Union  R.  R.  &  N.  Y.  314. 

Canal  Co.,  8  Q.  B.  Div.  420;  L.  R.  7  2  Colyer  v.  Finch,  5  H.  L.  Cas.  905, 

H.  L.  496-516  (where  the  Exch.  Ch.  920. 

was  reversed),  and  Farrand  v.  York-  3  Rice  v.  Rice;  The  Queen  v.  Shrop- 
shire  Banking  Co.,   40  Ch.   D.    188.  shire  Union,  etc.,  Co.,  id  sup. 
See,  also,  Maybin  v.  Kirby,  4  Rich  *  See  Chicago  R.  Co.  i'.  Nichols,  57 


276 


ASSIGNMENTS. 


[part  I. 


terferes  in  the  matter  for  the  purpose  of  preventing  C  from  using 
his  name,  or  any  other  circumstance  exists  by  which  C's  right  to 
recover  at  common  law  would  be  likely  to  be  defeated,  this  will 
give  rise  to  a  jurisdiction  in  equity,  and  a  bill  to  enforce  the  as- 
signment and  collect  the  debt  or  enjoin  the  assignor  from  collect- 
ing it  ^  will  then  be  entertained.  In  cases  in  which  it  is  proper  to 
resort  to  equity,  the  assignee  can  file  a  bill  in  his  own  name.^ 

While,  however,  in  many  instances,  the  assignee  may  sue  at 
law  in  the  name  of  the  assignor,  certain  cases  still  exist  in  which 
the  remedy  of  the  assignee  is  in  equity  alone. ^ 

173.  Liability  to  be  sued  cannot  be  transferred;  ex- 
ceptions. 

In  leaving  the  subject  of  this  chapter,  it  may  be  proper  to 
remark  that  the  liability  to  be  sued  cannot  be  transferred  or  as- 
signed; that  is  to  say,  a  person  bound  by  a  contract  cannot, 
before  or  after  breach,  relieve  himself  from  the  obligation  to 
perform  it  by  assignment  to  another;  nor  will  the  assignee,  with- 
out some  stipulation  on  his  part,  be  rendered  liable*  The  ex- 
ceptions to  this  rule  are:  the  assignment  of  liabilities  on  cov- 
enants which  "run  with  the  land ;"  the  assignment  of  liability  for 
a  debt  by  agreement  among  all  the  parties  interested;  and  the 
assignment  of  liabilities  in  consequence  of  marriage,  bankruptcy, 
or  death. ^ 

The  rule  upon  this  subject  is  the  same  in  equity  as  at  law. 


111.  466;  Hay  ward  v.  Andrews,  106 
U.  S.  672;  New  York  Guarantee  Co. 
V.  '  Memphis  Water  Co.,  107  Id. 
205;  Hayes  v.  Hayes,  45  N.  J.  Eq. 
461. 

In  some  jurisdictions,  the  assignee 
may  sue,  at  law,  in  his  own  name, 
(iregoire  ?'.  Rourke,  28  Oreg.  275. 
See,  also,  in  this  connection,  Bentley 
V.  Standard  Fire  Ins.  Co.,  40  W.  Va. 
729. 

1  Dulaney  v.  Scudder,  36  C.  C.  A, 
54. 


2  See  Lenox  v.  Roberts,  2  Wheat. 
373. 

3  Hammond  v.  Messenger,  9  Sim. 
327;  Ontario  Bank  v.  Mumford,  2 
Barb.  Ch.  596;  Adair  v.  Winchester,  8 
G.  &  J.  114;  Smiley  v.  Bell,  Mart.  & 
Yerg.  378;  Moseley  v.  Boush,  4  Rand. 
392;  Hagar  v.  Buck,  42  Vt.  290.  See 
1  Parsons  on  Contracts,  224,  note  (rf). 

<  Thomas  v.  Thomas,  24  Ore.  251. 
See  Dicey  on  Parties  to  Actions, 
pp.  76,  234. 

6  Id. 


PART  II. 

EQUITABLE  RIGHTS. 


CHAPTER  I. 


ACCIDENT   AND   MISTAKE, 


174.  Definition  of  Accident. 

175.  Limitations  upon  tfie  relief  af- 

forded in  equity. 

176.  Cases   in    which    reHef   will    be 

afforded. 

177.  Lost  instruments;  advantages  of 

remedy  in  equity. 

178.  Penalties. 

179.  Liquidated  damages. 

180.  Agreements    for    reduction    of 

debt. 

181.  Forfeitures. 

182.  Defective  execution  of  powers. 

183.  Miscellaneous  cases. 

184.  Equitable  remedies  in  cases  of 

Mistake. 

185.  Definition  of  Mistake. 


186.  Mistakes  of  two  kinds — of  Law 

and  of  Fact. 

187.  Mistakes  of  Law;  Hunt  v.  Rous- 

manier's  Adm'rs;  Griswold  v. 
Hazard. 

188.  Misrepresentation  and  Surprise. 

189.  Compromises  of  doubtful  rights; 

family  arrangements. 

190.  Mistakes     of     Fact;     different 

kinds. 

191.  Must  be  mutual,  material,  and 

not  induced  by  negligence. 

192.  Defective  execution  of  powers. 

193.  What  defects  may  be  remedied. 

194.  For  whose  benefit. 

195.  Against  whom. 

196.  Miscellaneous  cases. 


174.  Deflnition  of  Accident. 

Having  considered  those  cases  in  which  courts  of  equity  afford 
rehef  by  the  creation  of  titles  not  known  at  common  law,  the 
next  class  of  subjects  for  investigation  embraces  those  cases  in 
which  chancery  affects  and  controls  the  enjoyment  of  legal  titles 
by  the  operation  of  certain  rights  known  as  equities.^  Among 
the  first  of  these  equities  which  present  themselves  for  considera- 
tion, are  those  of  Accident  and  Mistake. 

Accident  is  one  of  those  "cases  of  extremity,"  which,  in  the 


1  Equities  are  rights  which  are 
established  and  enforced  in  accord- 
ance with  the  principles  of  equity 
jurisprudence    under    some    general 


principle  or  acknowledged  rule  gov- 
erning courts  of  equity.  Steger  v. 
Traveling  Men's  B.  &  L.  Assn.,  208 
111.  236. 

277 


278  ACCIDENT   AND   MISTAKE.  [PART  II, 

early  days  of  chancery  jurisdiction,  gave  to  the  suitor  his  right 
to  appeal  to  the  conscience  of  the  chancellor.  The  particular 
case  afterwards  furnished  the  generic  name  to  this  head  of  juris- 
diction, and  the  term  "accident"  is  now  commonly  used  to  in- 
clude all  cases  of  extremity.^ 

It  has  been  said  by  a  celebrated  writer  that  all  attempts  to 
define  what  accident,  in  its  equitable  signification  is,  have  been 
unsuccessful ; '  nevertheless,  it  has  been  described  by  a  modern 
author  to  be  an  unforeseen  and  injurious  occurrence  not  attribu- 
table to  mistake,  neglect,  or  misconduct;^  and  this  definition 
seems  to  be  both  accurate  and  comprehensive.  A  person  who 
has  been  the  sufferer  from  some  such  unforeseen  occurrence, 
which  caimot  be  ascribed  to  his  own  negligence,  folly,  or  fault, 
or,  possibly,  to  his  own  gross  ignorance  as  to  the  legal  effect  of 
his  acts,^  is  entitled,  as  a  general  rule,  to  relief  in  equity,  because, 
ordinarily,  the  courts  of  common  law  did  not  in  such  cases  afford 
redress.^ 

175.  Limitations  upon  the  relief  afforded  in  equity. 

Common-law  courts,  however,  did  not  refuse  relief  in  every 
case,^  nor  do  courts  of  equity  grant  redress  in  all;  for  the  juris- 
diction of  a  Court  of  Chancery  in  cases  of  accident  is  circum- 
scribed and  defined  by  certain  rules. 

Thus  equity  will  not  interfere  where  there  has  always  been 
an  adequate  remedy  at  law.  When,  however,  the  jurisdiction 
of  ecjuity  has  once  attached  by  reason  of  the  original  refusal  of 
courts  of  law  to  entertain  such  a  case,  that  jurisdiction  of  chan- 
cery, once  accjuired,  cannot  be  ousted  by  any  subsequent  as- 
sumption of  jurisdiction  in  such  cases  on  the  part  of  the  courts 
of  law ;  nor  because  authority  to  afford  relief  has  been  conferred 
on  conmion-law  courts  by  statute.'^  This  is  only  in  accordance 
with  the  general  maxim  already  explained.* 

1  1  Spence,  628.  See  East  India  cidents  are  supplied  in  a  court  of  law, 
Co.  V.  Boddam,  9  Ves.  466;  Armitage  as  loss  of  deeds,  mistakes  in  receipts 
V.  Wadsworth,  1  Mad.  189-193;  and  accounts,  wrong  payments, 
Story's  Eq.  Jurisp.  §  79.  deaths  which  make  it  impossible  to 

2  1  Spence,  628.  perform  a  condition  literally,  and  a 

3  Smith's  Manual  of  Equity,  36.  multitude  of  other  contingencies." 
See,  also,  Story's  Eq.  Jurisp.  §  78.  Id. 

4  Sims  V.  Lyle,  4  Wash.  C.  C.  320.  7  See  Case  v.  Fishback,  10  B.  Mon. 

5  See  post,  §  409.  40;  Hall  v.  Hall,  43  Ala.  488. 

8  3  Black.  Com.  431.     "Many  ac-  »  Ante,  pp.  56  et  seq.;  British  Em- 


CH.  I.]  ACCIDENT   AND   MISTAKE.  279 

Equity,  moreover,  will  not  interpose  to  remedy  an  accident 
which  is  the  result  of  the  gross  neglect  or  fault  of  the  party  seek- 
ing relief.^  It  would,  for  example,  decline  to  afford  relief  to  the 
obligee  in  a  bond  who  has  himself  destroyed  the  instrument.^ 
But  when  the  accident  occurs  through  the  act  of  God,  the  mle 
may,  under  some  circumstances,  be  modified.^ 

Again,  a  chancellor  will  not  afford  relief  so  as  to  entirely  re- 
lease a  person  from  doing  something  which  he  has  expressly 
covenanted  to  do,  but  of  which  the  performance  has  become  un- 
expectedly harsh  or  burdensome.  The  instance  of  this  rule 
which  is  usually  given,  is  the  destruction  of  demised  premises 
by  fire,  in  which  case,  if  there  is  an  express  covenant  to  pay  the 
rent,  the  tenant  is  compelled  to  pay,  although  he  has  quite  lost 
the  enjoyment  of  the  premises;  and  he  can  have  no  relief  in 
equity."* 

Care  must  be  taken  to  distinguish  these  cases  from  that  of  a 
penalty  incurred  by  reason  of  the  non-performance  of  a  covenant 
on  a  stipulated  day,  for  against  such  a  forfeiture  (if  the  injury 
inflicted  by  the  non-performance  of  the  covenant  can  be  com- 
pensated by  damages)  equity  will  relieve.  The  difference  is 
this:  in  the  case  of  a  forfeiture  the  plaintiff  asks  to  be  relieved 
from  the  penalty  only,  not  from  his  covenant;  but  in  the  case 
above  put,  of  the  destruction  of  demised  premises  by  fire,  the 
tenant  asks  that  the  court  should  relieve  him  entirely  from  the 
obligation  to  pay  rent  which  he  has  assumed,  and  this  a  court  of 
equity  will  decline  to  do. 

Equity  will  not  interfere  on  the  ground  of  accident  against 
a  bona  fide  purchaser  for  value  without  notice,  or,  indeed,  in  any 
case  in  which  the  equity  of  the  party  against  whom  the  relief  is 
sought  is  equal  or  superior  to  that  of  the  party  who  invokes  the 
aid  of  the  court.  On  the  other  hand,  a  chancellor  will  not  inter- 
pose upon  the  application  of  a  mere  volunteer.^ 

pire  Shipping  Co.  v.  Somes,  3  K.  &  J.  *  See  Smith's  Land,  and  Ten.  203. 

437;    Snell's    Eq.    335;    Story's    Eq.  See,  also,   Fowler  v.   Bott,   6  Mass. 

Jurisp.  §  80.  63;   Hallett   v.    Wylie,    3   Johns.    R. 

'Murine    Ins.   Co.    v.    Hodgson,    7  44;  Brewer  v.  Herbert,  30  Md.  301; 

Cranch,    336;    Penny    v.    Martin,    4  Magaw    v.    Lambert,    3    Barr,    444; 

Johns.  Ch.  569;  Barnet  v.  Turnpike  Bussman    v.    Ganster,    72    Pa.    285; 

Co.,  15  Vt.  757.  Jackson    on    Land,    and    Ten.    par. 

•^  Davis  V.  Davis,  6  Ired.  Eq.  418;  286. 

Ex  parte  Greenway,  6  Ves.  813.  a  Story's    Eq.    Jurisp.     §§   106    ei 

3  Chase  i-.  Barrett,  4  Paige  Ch.  148.  seq. 


280  ACCIDENT   AND    MISTAKE.  [PART  II, 

176.  Cases  in  which  relief  will  be  afforded. 

Subject  to  the  qualifications  above  stated,  equity  will  relieve 
when  deeds  or  other  instruments  are  lost,  when  penalties  are 
accidentally  incurred,  when  powers  are  defectively  exercised, 
and  in  certain  miscellaneous  cases  which  cannot  be  grouped 
under  general  heads. ^ 

177.  Lost  instruments  ;  advantages  of  remedy  in  equity. 

Equity,  then,  has,  in  the  first  place,  a  jurisdiction  to  give  relief 
when  bonds  or  other  documents  are  lost,^  and  the  loss  obstructs 
the  right  of  the  plaintiff  at  law,  or  leaves  him  exposed  to  undue 
perils  in  the  future  assertion  of  such  rights.  The  mere  loss  will 
not  be  sufficient  to  give  equity  jurisdiction ;  but  the  party  must 
show  that  he  has  no  remedy  or  no  sufficient  remedy  at  law. 

Apart  from  the  fact  that  a  re-execution  of  the  instrument  may 
be  ordered,^  the  superiority  of  the  equitable  over  the  legal  relief 
is  shown  in  many  ways.  In  equity,  suitable  indemnity  can  al- 
ways be  exacted  from  the  complainant,  so  that  recovery  upon  a 
lost  instrument  may  be  had,  and,  at  the  same  time,  the  defend- 
ant may  be  sufficiently  protected  against  any  contingent  lia- 
bility growing  out  of  the  subsequent  discovery  of  the  instrument, 
and  an  assertion  of  rights  under  the  same  by  any  other  party. 
Indemnity  can,  indeed,  be  required  in  common-law  actions, 
especially  in  this  country,  where  not  only  equitable  principles, 
but  also  equitable  practice,  have  been,  in  many  instances,  infused 
into  the  common-law  forms.'*  Nevertheless,  the  ability  of  courts 
of  equity  to  require  such  a  stipulation  is  undoubted,  and  has 

1  Equity  cannot  restore  the  lost  another  deed,  so  as  to  clothe  grantee 
records  of  another  court,  Keen  v.  with  the  record  title.  Kent  v. 
Jordan,  13  Fla.  .327,  though  it  may  Church  of  St.  Michael,  136  N.  Y. 
confirm   a   title  acquired   under  lost  10. 

records.     Garratt  v.  Lynch,   45  Ala.  3  The  jurisdiction  of  equity  is  fre- 

204.  quently   described    as   extending   to 

2  Story's  Ec].  .Jurisp.  §  84.  See  cases  of  loss,  destruction  or  suppres- 
East  India  (;o.  ?'.  Boddam,  9  Ves.  466;  sion  of  deeds;  but  suppression  must 
Donald.son  v.  Williams,  50  Mo.  408;  be  a  fraud,  and  equity  would  have 
Patton  r.  Campbell,  70  111.  72;  Reeves  jurisdiction  under  that  head.  See 
r.  Morgan,  48  N.  J.  Eq.  415;  Cleaven-  post,  Part  III.,  chapter  on  Re- 
ger  V.  Franklin  Fire  Ins.  Co.,  47  W.  execution  and  Cancellation. 

Va.  595.    Where  an  unrecorded  deed  *  Bridgeford  v.  Masonville  Manuf. 

of  land  has  been  lost,  an  action  in  Co.,  34  Conn.  546;  Almy  v.  Reed,  10 

equity  is  maintainable  to  compel  the  Cush.  421;  Smith  v.  Rockwell,  2  Hill 

grantor,    or    after    his    death,    those  (N.    Y.),   482;   Fales   v.    Russell,    16 

representing    his    title,    to    execute  Pick.  315;  Story's  Eq.  Jurisp.   §  82. 


CH.  I.] 


ACCIDENT    AND    MISTAKE. 


281 


been  one  of  the  grounds  on  which  the  jurisdiction  in  cases  of  acci- 
dent has  been  supported. 

An  alternative  decree  may  be  framed  in  equity  so  as  to  do 
justice  either  in  the  event  of  the  continued  loss  or  withholding 
of  the  instrument,  or  in  that  of  its  discovery  or  production.^ 
Mere  declaratory  decrees,  i.  e.,  decrees  declaring  the  rights  of 
parties  to  property,  of  which  they  are  already  in  possession,  but 
of  which  their  title  may  be  disputed,  may  be  entered  in  eciuity.- 
Such  decrees  are,  of  course,  beyond  the  power  of  the  common- 
law  courts,  for  there  the  party  in  possession  could  bring  no  action 
by  which  his  title  could  be  ascertained  as  against  a  threatened 
claim. 

Profert  of  bonds  may  be  dispensed  with  in  equity;  whereas 
at  law  such  profert  had  to  be  made  in  the  declaration,  and  the 
instrument  produced,  if  required.  The  old  common-law  rule 
has  indeed  been  altered,  and  a  party  may  now  excune  a  profert, 
stating  his  excuse  in  the  declaration. -"^  But  equity,  having  ac- 
quired jurisdiction  under  the  law  as  it  formerly  stood,  still  re- 
tains it  in  such  cases.^ 

It  is  one  of  the  safeguards  with  which  equity  surrounds  a  de- 
fendant in  the  cases  now  under  consideration,  that  the  plaintiff 
must  file  an  affidavit  of  the  loss  of  the  instrument.-^  In  some 
instances,  it  is  true,  relief  has  been  afforded  where  the  proof  of 
loss  was  very  clear,  although  no  affidavit  had  been  filed;  but, 
as  a  general  rule,  an  affidavit  will  be  demanded,^  for  it  is  re- 


1  Story's  Eq.  Jurisp.  §  84. 

2  See  Rex  v.  Arundel,  Hob.  108  {h) ; 
Worthy  v.  Tate,  44  Ga.  152;  Sharon 
V.  Tucker,  144  U.  S.  533;  Story's 
Eq.  Jurisp.  §  84.  This  doctrine,  how- 
ever, is  not  carried  to  the  extent  of 
holding  that  bills  may  be  filed  for  the 
mere  purpose  of  having  future  rights 
declared.  There  must  be  some  pres- 
ent ground  for  redress,  such  as  dis- 
covery, accident,  etc.  See  post, 
§571. 

3  See  Chitty's  Pleading,  365.  See, 
also,  Ex  parte  Greenway,  6  Ves.  811; 
East  India  Co.  v.  Boddam,  9  Id.  4()(). 

<  Bromley  v.  Holland,  7  Ves.  18. 
5  Except  in  cases  of  bills  for  dis- 
covery only;  for  it  is  presumed  that 


no  person  who  is  in  possession  of  the 
instrument  would  file  a  bill  for  the 
discovery  of  it,  especially  when  the 
expense  of  a  discovery  all  falls  upon 
the  plaintiff.  Goldsmith's  Doctrine 
of  Equity,  82;  Daniel's  Ch.  Prac.  395, 
39(5;  Story's  Eq.  Pleading,  §  288. 

6  Chewning  v.  Singleton,  2  Hill  Eq. 
371;  Hill  V.  Lackey,  9  Dana,  81; 
Owen  V.  Paul,  16  Ala.  130;  Penning- 
ton V.  The  Governor,  1  Blackf.  78; 
Thornton  v.  Stewart,  7  Leigh,  128; 
Livingston  v.  Livingston,  4  Johns. 
Ch.  294;  Graham  v.  Hackwith,  1  A. 
K.  Marsh.  424;  Parson's  Adm'r  v. 
Wilson,  2  Tenn.  2G0;  Webb  r.  Bow- 
man, 3  J.  J.  Marsh.  73;  1  Dan.  Chan. 
Prac.  395. 


282  ACCIDENT   AND   MISTAKE.  [pART  II. 

quired  not  so  much  as  evidence  of  loss,  as  security  for  the  pro- 
priety of  jurisdiction.^ 

As  to  jn'oniissory  notes  the  rule  seems  to  be,  that,  where  the 
note  is  negotiable  and  is  lost  before  it  becomes  due,  no  recovery 
can  be  had  at  law,  and  the  remedy  is  solely  in  etjuity.^  But  if 
the  note  was  not  negotiable,  or  the  loss  happened  after  the  note 
fell  due,  the  party  has  a  remedy  at  law ;  and  as  profert  of  a  jiron;- 
issory  note  is  not  necessary,  the  remedy  at  law  is  complete,  ami 
the  party  has  no  standing  in  equity,  unless,  of  course,  some  other 
and  special  ground  is  laid. 

178.  Penalties. 

Another  class  of  cases  in  which  equity  originally  afforded  re- 
lief, on  the  ground  of  accident,  is  that  of  penalties. 

Accident  is  undoubtedly  the  origin  of  the  jurisdiction  of  chan- 
cery upon  the  subject  of  penalties;  but  subsequently  the  juris- 
diction was  extended  to  embrace  all  questions  as  to  penalties 
irrespective  of  accident.^ 

The  penalty  named  in  a  bond  was  originally  inserted  for  the 
purpose  of  "evading  the  absurdity  of  those  monkish  constitu- 
tions which  prohibited  taking  interest  for  money,  and  was,  there- 
fore, very  pardonabl}'  considered  the  real  debt  in  courts  of  law, 
when  the  debtor  neglected  to  perform  his  agreement  for  the  re- 
turn of  the  loan  with  interest ;  for  the  judges  could  not,  as  the  law 
then  stood,  give  judgment  that  the  interest  should  be  specifically 
paid."  ■*  The  reason  of  this  rule  ceased  when  interest  was  al- 
lowed by  statute  to  be  recovered ;  l^ut  the  narrow  and'  illiberal 
views  which  were  entertained  at  this  time,  in  courts  of  law,  pre- 
vented the  judges  from  taking  advantage  of  the  circumstance  to 
alter  the  rule ;  and  the  suitor  was  consequently  driven  into  chan- 
cery. The  jurisdiction  of  chancery,  as  has  been  already  stated, 
originally  aro.se  when  the  obligor  was  prevented  by  accident  from 
paying  the  sum  on  the  day  named;  but  it  was  afterwards  ex- 
tended, and  now  embraces  all  cases  of  default  from  whatever 
cause — upon  the  principle  that  compensation  and  not  forfeit uie 
is  the  just  and  equitable  rule  which  is  to  be  applied  to  all  cases, 

1  East  India  Co.  v.  Boddain,  9  Ves.  .stone,  1  K.  &  J.  701;  Savannah  Xat. 

466.     See  Bromley  v.  Holland,  7  Id.  Bank  r.  Haskins,  101  Mass.  370. 

18.  3  See  1  Spence,  E^.  629,  630. 

-'  See  Byles  on  Bills  (Sharswood),  *  3  Black.  Com.  434. 
300,  301,  and  notes;  Wright  v.  Maid- 


CH.  I.] 


ACCIDENT    AND   MISTAKE. 


283 


and  that  when  a  debtor  pays  the  debt,  with  interest  for  its  de- 
tention, and  costs,  he  ought  not  to  be  mulcted  in  a  further  sum. 
This  reasonable  rule  soon  found  its  way  into  the  statute  book, 
and  acts  of  parliament  were  passed  allowing  courts  of  common 
law  to  afford  the  same  relief.^  These,  or  similar  statutes,  are  in 
force  generally  in  the  United  States;  and  the  necessity  for  the 
exercise  of  chancery  interference  has,  therefore,  to  a  great  extent, 
passed  away;  but  its  jurisdiction  still  remains.' 

179.  Liquidated  damages. 

The  question  which,  perhaps,  most  frequently  arises  is,  whether 
the  sum  named  is  to  be  regarded  as  a  penalty,  or  as  the  amount 
of  damages  which  the  parties  have  agreed  shall  be  recovered  in 
case  of  a  breach  of  the  covenant.  Against  a  penalty  equity  will 
relieve;  but  not  against  stipulated  (or  liquidated)  damages."'' 

The  mere  use,  however,  of  the  words  "stipulated  damages," 
will  not  determine  the  rule  to  be  applied ;  t]iat  will  depend  upon 
the  substantial  nature  of  the  contract.'*  The  general  result  of 
the  authorities  has  been  correctly  stated  to  be,  that  ''when  the 
injury  is  susceptible  of  definite  admeasurement,  as  in  all  cases 
where  the  breach  consists  in  the  non-payment  of  money,  the 
parties  will  not  be  allowed  to  make  a  stipulation  for  a  greater 
amount,  whether  in  the  form  of  a  penalty  or  of  licjuidated  dam- 
ages.^ But  when,  on  the  other  hand,  the  injury  in  question  is 
uncertain  in  itself,  and  unsusceptible  of  being  reduced  to  cer- 
tainty by  a  legal  computation,  it  may  be  settled  beforehand  by 


18  and  9  Will.  III.,  ch.  11,  §8;  4 
andS  Anne,  ch.  16,  §§  12,  13.  It  was 
said,  in  Betts  v.  Burch,  4  Hurl.  & 
Nor.  500,  that  the  court.s  seem  to 
have  granted  relief  without  reference 
to  the  statutes,  and  on  general  prin- 
ciples. See  2  Lead.  Cas.  Eq.  1098 
(4th  Eng.  ed.). 

-  See  the  notes  to  Peachy  v.  The 
Duke  of  Somerset,  2  Lead.  Cas.  Eq. 
1096  (4th  Eng.  ed.);  3  Id.  895  (3  .\m. 
ed.);  Ewing  v.  Litchfield,  91  Va.  575; 
Lynch  v.  Versailles  Fuel  Gas  Co.,  165 
Pa.  518. 

3  Skinner  v.  Dayton,  2  Johns.  Ch. 
526;  Hackett  v.  Alcock,  1  Call,  533; 
Asher   v.   Pendleton,    6   Gratt.    628; 


Dills  V.  Doebler,  62  Conn.  366;  Kun- 
kel  V.  Wherry,  189  Pa.  201;  Burgoon 
V.  Johnson,  194  Id.  61. 

<  Hamaker  v.  Schroers,  49  Mo.  406; 
Morris  v.  McCoy,  7  Nev.  399;  Lee  v. 
Overstreet,  44  Ga.  507;  Goldman  v. 
Goldman,  51  La.  Ann.  761;  Morrill 
V.  Weeks,  70  N.  H.  178;  notes  to 
Peachy  v.  Duke  of  Somerset,  3  Lead. 
Cas.  Eq.  677  (3  Am.  ed.);  Stony 
Creek  Lumber  Co.  v.  Fields,  102 
Va.  1. 

5  See  Rayner  v.  Rederiaktiebolaget 
Condor  [1895],  2  Q.  B.  289;  Wilson  v. 
Love  [1896],  1  Q.  B.  626;  Poppers  v. 
Meagher,  148  111.  192. 


284 


ACCIDENT    AND   MISTAKE. 


[pari   II. 


a  special  agreement."  ^    In  all  cases,  however,  it  is  a  question  of 
intention.- 

180.  Agreements  for  reduction  of  debt. 

Another  question  which  often  presents  itself  for  consideration 
is,  whether  an  agreement  for  the  reduction  of  a  debt,  in  case  of 
prompt  payment,  or  the  performance  of  some  other  condition, 
shall  be  governed  by  the  ordinary  rules  which  are  applicable  to 
penalties. 

The  rule  is  that  where  a  certain  sum  of  money  is  due  and  the 
creditor  enters  into  arrangements  with  his  debtor  to  take  a  lesser 
sum,  provided  that  sum  is  secured  in  a  certain  way  and  paid  at  a 
certain  day,  but  if  any  of  the  stipulations  of  the  arrangement  are 
not  performed  as  agreed  upon,  the  creditor  is  to  be  entitled  to  re- 
cover the  whole  of  the  original  debt,  such  remitter  to  his  original 
rights  does  not  constitute  a  penalty,  and  equity  will  not  interfere 
to  prevent  its  observance.*'' 

The  court,  in  this  case,  approved  the  doctrine  as  stated  in 
Thompson  i'.  Hudson,'*  decided  in  1869,  in  the  House  of  Lords. 
Equity,  it  was  there  said,  will  always  look  to  the  substance  of 
the  transaction;  if  the  substance  is  inequitable,  equity  will  re- 
lieve against  it,  or  will  not  enforce  it — if  it  is  not  so,  equity  will 
enforce  the  agreement.^    The  law  is  perfectly  clear,  that  where 


1  Nesbit  V.  Brown,  1  Dev.  Eq.  30; 
Rogan  V.  Walker,  1  Wis.  527;  3  Lead. 
Cas.  Eq.  683  (3d  Am.  ed.);  Heat- 
wole  V.  Gorrell,  35  Kan.  692;  Gay 
Manuf.  Co.  v.  Camp,  25  U.  S.  App. 
134;  Woodbury  v.  Turner  Manuf. 
Co.,  96  Ky.  459;  Borley  v.  McDonald, 
69  Vt.  309;  Curtis  v.  Van  Bergh,  161 
N.  Y.  47;  Taylor  v.  Times  Newspaper 
Co.,  83  Minn.  523;  Johnson  v.  Cook, 
24  Wash.  474;  Whiting  v.  Village  of 
New  Baltimore,  127  Mich.  66;  New 
Britain  v.  New  Britain  Telephone 
Co.,  74  Conn.  326;  Law  v.  Local 
Board  of  Redditch  [1892],  1  Q.  B. 
127;  .\ugusta  Laundry  Co.  c.  De- 
bow,  98  Me.  496. 

2  2  Lead.  Cas.  Eq.  2052  (4th  ed.). 
See,  also,  Cotheal  r.  Talmage,  5  Seld. 
551 ;  Streeper  r.  Williams,  48  Pa.  454  ; 
Shreve  v.  Brereton,  51  Id.  175;  Keck 


V.  Bieber,  148  Id.  646;  Wilkinson  v. 
Colley,  164  Id.  35;  Malone  v.  Phila- 
delphia, 147  Id.  416;  Cochran  v. 
People's  Ry.  Co.,  113  Mo.  359;  Clem- 
ents V.  R.  R.,  132  Pa.  445;  Chase  v. 
.\llen,  13  Gray,  45;  Fisk  r.  Gray,  11 
Allen,  132;  Guerin  v.  Stacy,  175  Mass. 
595;  Coal  Creek  Co.  v.  Tennessee  Coal 
Co.,  106  Tenn.  651;  Wheedon  v.  Am. 
Bonding  and  Trust  Co.,  128  N.  C. 
69;  Morrill  v.  Weeks,  70  N.  H.  178, 
and  cases  cited  in  preceding  note; 
3  Parsons  on  Contracts,  156. 

3  United  States  Mortgage  Co.  r'. 
Sperry,  138  U.  S.  348.  The  same 
rule  was  recognized  in  Walsh  v. 
Curtis,  73  Minn.  254,  but  the  facts 
of  the  case  were  not  deemed  to  war- 
rant its  application. 

*L.  R.4H.  L.  1. 

^  By  Lord  Selboine  (then  Sir  Roun- 


CH.  I.]  ACCIDENT    AND   MISTAKE.  285 

there  is  a  debt  actually  due,  and  in  respect  of  that  debt  a  secu- 
rity is  given,  be  it  by  way  of  mortgage,  or  be  it  by  way  of  stipu- 
lation, that,  in  case  of  its  not  being  paid  at  the  time  appointed, 
a  larger  sum  shall  become  payable,  and  be  paid;  in  either  of 
these  cases,  equity  regards  the  security  that  has  been  given  as  a 
mere  pledge  for  the  debt,  and  it  will  not  allow  either  a  forfeiture 
of  the  property  pledged  or  any  augmentation  of  the  debt  as  a 
penal  provision,  on  the  ground  that  eciuity  regards  the  contem- 
plated forfeiture,  which  might  take  place  at  law  with  reference 
to  the  estates,  as  in  the  nature  of  a  penal  provision,  against  which 
ecjuity  will  relieve  when  the  object  in  view,  viz.,  the  securing  of 
the  debt,  is  attained,  and  regarding,  also,  the  stipulation  for  the 
payment  of  a  larger  sum  of  money,  if  the  sum  be  not  paid  at  time 
it  was  due,  as  a  penalty  and  a  forfeiture  against  which  ecjuity  will 
relieve.  It  is  equally  clear,  upon  the  other  hand,  that,  where 
there  is  a  debt  due,  and  an  agreement  is  entered  into  at  the  time 
of  that  debt  having  become  due,  and  not  being  paid,  in  regard  to 
further  indulgence  to  be  conceded  to  the  debtor,  or  further  time 
to  be  accorded  to  him  for  the  ])ayment  of  the  debt,  or  in  regard 
to  his  paying  it  immediately,  if  that  be  a  portion  of  the  stipula- 
tions of  the  agreement,  or  at  some  future  time  which  may  be 
named,  and  the  creditor  is  willing  to  allow  him  certain  advan- 
tages and  deductions  from  that  debt,  as  well  as  to  extend  the 
time  for  its  payment,  if  adequate  and  satisfactory  security  is  af- 
forded him  as  a  consideration,  then  it  is  perfectly  competent  to 
the  creditor  to  say  that  if  the  payment  is  not  made  modo  ei  forma 
according  to  the  stipulation,  the  right  to  the  original  debt  re- 
verts.^ In  other  words,  it  is  right  and  rational  for  a  creditor  to 
say  to  his  debtor:  "  Provided  you  pay  me  half  of  the  debt  or  two- 
thirds  of  the  debt  on  an  appointed  day,  I  will  release  you  from 
the  rest,  and  will  accept  the  money  so  paid  in  discharge  of  the 
whole  debt;  but  if  you  do  not  make  payment  of  it  on  that  day, 
then  the  whole  debt  shall  remain  due  to  me,  and  I  shall  be  at 
liberty  to  recover  it;"  and  this  is  the  view  which  a  court  of  equity 
willadopt.^ 

(kl  Palmer)  and  L.  J.  Mellish  (then  tion,"  said  Lord  Westbury,  "to  any 

Mr.  Mellish),  arguendo  for  appellants.  plain    man    walking    the    streets    of 

1  See  opinion  of  Lord  Hatherley  in  London,  there  could  be  no  doubt  at 

T-.  R.  4  H.  L.  15.  all  that  he  would  say  that  it  is  rea- 

-  Thompson  v.  Hudson — opinion  of  sonablc  and  accordant  with  common 

Lord  Westbury,   L.   R.  4  H.   L.   27.  sense.    But  if  he  was  told  that  it  was 

"If  you  were  to  put  that  proposi-  requisite  to  go  to  three  tribunals  be- 


286  ACCIDENT    AND   MISTAKE.  [PART   II. 

In  accordance  with  these  principles,  it  has  been  decided  that, 
where  a  mortgage  provides  for  the  payment  of  sums  by  instal- 
ments, and  contains  a  stipulation  for  the  payment  of  the  whole 
sum  due  in  default  of  payment  of  any  such  instalment,  such 
proviso  is  binding  and  not  in  the  nature  of  a  penalty.^  The 
same  rule  applies  to  the  case  of  stipulations  for  the  immediate 
matiu'ity  of  the  principal  debt  upon  default  in  payment  of  in- 
terest ;  and  where  the  mortgagor  offers  no  excuse  except  his  own 
neglect,  he  will  not  be  favorably  regarded.' 

A  man  cannot  escape  from  the  specific  performance  of  an 
agreement  by  electing  to  pay  the  penalty  for  the  breach.  "If 
a  man,  for  instance,  agrees  to  settle  an  estate,  and  executes  his 
bond  for  a  certain  sum  as  a  security  for  the  performance  of  his 
contract,  he  will  not  be  allowed  to  pay  the  forfeit  of  his  bond, 
and  avoid  his  agreement,  but  he  will  be  compelled  to  settle  his 
estate  in  specific  performance  of  his  agreement."  ^ 

181.  Forfeitures. 

The  relief  afforded  in  cases  of  penalties  is  only  an  instance  of  a 
general  rule ;  for  the  same  species  of  redress  will  be  afforded  in  all 
cases  of  forfeiture  resulting  from  non-payment  of  money,  and  in 
all  cases  where  the  damage  incurred  by  non-performance  is 
susceptible  of  pecuniary  measurement,  and,  therefore,  of  com- 
pensation.^    An  excellent  instance  of  the  application  of  this 


fore  you  could  get  that  plain  princi-  2  Warwick  Iron  Co.  v.  Morton,  148 

pie  and  conclusion  of  common  sense  Pa.  72-74. 

accepted    as    law,    he    would,    un-  3  Per  Lord  St.  Leonards  in  French 

doubtedly,   hold   up  his  hands  with  r.  Macale,  2  Dr.  &  War.  275;  Gordon 

astonishment  at  the  state  of  the  law."  v.  Brown,  4  Ired.  Eq.  399;  Dooley  v. 

See  Parker  v.  Olliver,  106  Ala.  549.  Watson,  1  Gray,  414;  Canal  Co.  v. 

But  in  Goodyear  Co.  v.  Selz,  157  111.  Sansom,  1  Binney,  70;  Brown  v.  Bel- 

186,  a  discount  allowable  for  payment  lows,    4    Pick.    179.      See,    however, 

of  rent,  by  way  of  anticipation,  was  Perkins    i\    Lyman,     11    Mass.    76; 

held  to  be  a  penalty.  Pearson  v.  Williams,  26  Wend.  630; 

1  Sterne  v.  Beck,  11  Weekly  Rep.  Williams  v.  Green,  14  Ark.  315,  322; 

791;  Robinson  i\  Loomis,  51  Pa.  78;  Bodine  v.  Glading,  21  Pa.  50,  54;  3 

The  People  V.  The  Sup.  Ct.  of  N.  Y.,  Lead.   Cas.  Eq.   685   (3d  Am.  ed.); 

19   Wend.    104;    Noyes   ?;.   Clark,    7  Middletown  v.  Newport  Hospital,  16 

Paige  Ch.  179;  The  Plank  Road  Co.  R.   I.  319;  Lyman  v.   Gedney,   114 

V.    Murray,    15    111.    337;    Curran    v.  111.  388. 

Houston,    201    Id.    442;    Baldwin    v.  ^  Hagar     v.     Buck,    44    Vt.     285; 

Van  Vorst,  10  N.  J.  Eq.  577;  Hewitt  Bowser  v.  Colby,  1  Hare,  128.     See 

V.  Dean,  91  Cal.  5.  further  upon   this  subject,   Gregory 


CH.  I.] 


ACCIDENT    Ai\D    MISTAKE. 


287 


general  rule  will  be  found  in  a  recent  decision  in  New  Jersey.^ 
So  if  no  loss  has  been  sustained,  equity  may,  in  some  cases,  com- 
pel the  return  of  a  deposit  of  money  which  is  attempted  to  be 
forfeited.^ 

But  equity  will  not,  in  general,  and  in  the  absence  of  special 
circumstances  calhng  for  interference,  give  relief  in  cases  of 
forfeiture  growing  out  of  breach  of  covenant  for  repairing,  in- 
suring, or  doing  any  specific  act.^  The  ground  of  this  difference 
is,  that  in  such  cases,  it  is  unknown  "what  the  measure  of  dam- 
ages shall  be."  "*  Therefore,  it  cannot  be  argued  that  there  is 
any  right  in  a  court  of  equity,  or  any  practice  of  such  a  court  to 
give  relief  in  cases  of  this  kind  by  way  of  mercy,  or  by  way  merely 
of  saving  property  from  forfeiture.  But  relief  may  be  afford(>d  in 
some  cases,  for  it  is  the  first  principle  upon  which  all  courts  of 
equity  proceed,  that  if  parties  who  have  entered  into  definite 
and  distinct  terms  involving  certain  legal  results — certain  ])enal- 
ties  or  legal  forfeiture — afterwards  by  their  own  acts,  or  with 
their  own  consent,  enter  upon  a  course  of  negotiation  which  has 
the  effect  of  leading  one  of  the  parties  to  suppose  that  the  strict 
rights  arising  under  the  contract  will  not  be  enforced,  or  will  be 


V.  Wilson,  0  Hare,  683;  Bargent  v. 
Thompson,  4  Giff.  473;  Nokes  v. 
Gibbon,  3  Drew.  681 ;  Hill  v.  Barclay, 
18  Ves.  62;  Bracebridge  r.  Buckley,  2 
Price,  200;  Walker  r.  Wheeler,  2 
Conn.  299;  Michigan  State  Bank  r. 
Hammond,  1  Doug.  (Mich.)  527; 
Hancock  v.  Carlton,  6  Gray,  39; 
Thompson  r.  Whipple,  5  R.  I.  144; 
Kopper  V.  Dyer,  59  Vt.  477;  Palmer 
V.  Ford,  70  III.  369;  Orr  r.  Zimmer- 
mann,  63  Mo.  72,  and  Ebert  v. 
Arends,  190  111.  221,  an  excellent 
illustration  of  the  way  in  which  the 
general  principles  of  equity  are  ap- 
plied in  such  ca.ses. 

1  North  Jersey  Street  Ry.  Co.  v. 
South  Orange,  58  N.  J.  Eq.  83.  See, 
also,  Alhson  r.  Cocke's  Extr.,  106 
Ky.  763;  Pheasant  v.  Hanna,  63 
W.  Va.  613. 

2  See  Willson  v.  Mayor  of  Balti- 
more, 83  Md.  203 — a  case  in  which 
a  bidder  on  a  municipal  contract  was 


held  entitled  to  a  return  of  his  de- 
posit money. 

3  Nor  will  it,  except  under  special 
circumstances,  relieve  against  the 
non-performance  of  a  condition  prec- 
edent. Reves  r.  Toulman,  25  Ala. 
452;  West  Va.  &  P.  R.  Co.  v.  Harri- 
son County  Court,  47  W.  Va.  273. 
See  South  Penn  Oil  Co.  v.  Edgell,  48 
W.  Va.  348,  for  a  case  in  which  relief 
was  granted. 

4  Wafer  r.  Mocato,  9  Mod.  112; 
Reynolds  r.  Pitt,  19  Ves.  141;  Des- 
carlett  v.  Dennett,  9  Mod.  22;  Sparks 
V.  Liverpool  Waterworks,  13  Ves. 
428;  Germantown  Pass.  Railway  Co. 
r.  Fitler,  60  Pa.  131;  Dunklee  ?-. 
Adams,  20  Vt.  415.  In  England  par- 
ties who  have  been  guilty  of  a  for- 
feiture for  non-compliance  with  a 
covenant  to  insure,  are  now  relieved 
by  Stat.  22  and  23  Vict.,  c.  35,  under 
certain  circumstances,  and  upon  cer- 
tain conditions. 


288 


ACCIDENT    AND    MISTAKE. 


[part  II. 


kept  in  suspense,  or  held  in  abeyance,  the  person  who  otherwise 
might  have  enforced  those  rights  will  not  be  allowed  to  do  so 
where  it  would  be  inequitable,  having  regard  to  the  course  of 
dealing  between  the  parties.^  Hence,  it  was  decided  in  a  com- 
paratively recent  case  in  the  House  of  Lords,  that  where  a  notice 
to  repair  has  been  given,  and  the  lessee  makes  an  offer  to  sell  his 
iiitciest  in  the  premises,  and  a  negotiation  takes  place  on  that 
offer,  the  effect  of  that  offer  and  the  negotiation  is  to  suspend  the 
notice  till  the  negotiation  has  been  terminated,  from  which  event 
alone  the  date  of  the  notice  can  properly  be  calculated ;  and  that 
equity  would  relieve  against  an  ejectment  founded  on  the  original 
notice.' 

It  is  well  settled  that  a  court  of  equity  will  not  lend  its  aid 
actively  to  enforce  a  forfeiture.^  A  chancellor  will  not  lift  his 
hand  to  aid  a  litigant  in  enforcing  a  forfeiture.'*  Thus,  in  the 
Oil  Creek  Railroad  Company  v.  The  Atlantic  and  Great  \A'estern 
Railroad  Company,  a  bill  was  filed  to  enforce  the  forfeiture  of  a 
lease  granted  by  the  complainants  to  the  defendants,  on  the 
ground  that  the  latter  had  forfeited  their  right  to  the  same  ))y 
their  failure  to  build  a  road  within  the  time  prescribed,  in  accord- 
ance with  the  express  provisions  of  the  lease.  The  court  was 
distinctly  asked  to  enforce  what  had  been  agreed  upon  by  the 
}3arties  should  be  a  forfeiture.  But  the  prayer  of  the  bill  was 
refused  on  the  express  ground  that  a  court  of  equity  will  never 
lend  its  assistance  in  the  enforcement  of  a  forfeiture,  but  will 
leave  the  parties  to  their  legal  remedies.^  In  some  cases,  how- 
ever, the  enforcement  of  a  forfeiture  may  be  regarded  in  equity 
with  favor.^ 


1  Hollowell  V.  Ins.  Co.,  126  N.  C. 
398. 

2  Hughes  V.  Directors  of  the  Metro- 
politan Railway,  2  App.  Cas.  439; 
and  see  Hukill  v.  Mjers,  36  W.  Va. 
639. 

3  Livingston  r.  Tompkins,  4  Johns. 
C'h.  415:  Warner  r.  Bennett,  31  Conn. 
468;  Smith  v.  .Jewett,  40  N.  H.  534; 
Bird  )•.  Hawkins,  .58  N.  J.  Eq.  229; 
Bonniwell  v.  Madison,  107  Iowa,  85; 
4  Kent's  Com.  130;  Toledo  R.  R.  Co. 
r.  St.  Louis  R.  R.  Co.,  208  111.  623; 
Moberly  v.  Trenton,  181  Mo.  ()37, 
Tetley  v.  McElmurry,  201  Mo.  382. 


*  Foley  V.  Grand  Hotel  Co.,  57  C. 
C.  A.  629. 

5  57  Pa.  65;  McKim  r.  White  Hall 
Co.,  2  Md.  Ch.  610;  Clarke  v.  Drake, 
3  Chand.  253;  Gordon  v.  Lowell,  21 
Me.  251 ;  Beecher  v.  Beecher,  43 
Conn.  556;  Shade  v.  Oldro^d,  39 
Kan.  313;  Cheney  r.  Bilby,  36  U.  S. 
App.  720;  Wick  v.  Bredin,  189  Pa. 
94;  South  Car.  Co.  v.  Augusta  Co., 
107  Ga.  164;  Hodges  v.  Buell,  134 
Mich.  162;  Spies  v.  Railroad  Co.,  60 
W.  Va.  389. 

8  Brown  v.  Vandergrift,  80  Pa.  142. 
See,  also,  Drown  v.  Ingels,  3  Wash. 


CH.  I.]  ACCIDENT    AND    MISTAKE.  289 

182.  Defective  execution  of  powers. 

The  third  class  of  cases  in  which  equity  will  relieve  on  the 
ground  of  accident  embraces  defective  execution  of  powers.^ 
This  subject  will  be  more  fully  considered  under  the  next  head 
of  equity  jurisdiction — that,  namely,  of  Mistake.  It  will  be 
sufficient  to  say,  at  present,  that  in  cases  of  accident,  ec^uity 
will  relieve  where  there  is  a  defective  execution  of  a  power,  but 
not  where  there  is  a  non-execution,  in  favor  of  a  purchaser,  a 
creditor,  a  wife,  a  child,  or  a  charity;  but  not  in  favor  of  the 
donee  of  the  power,  or  a  husband,  or  grandchildren,  or  remote 
relations,  or  strangers;  and  not  where  there  are  any  opposing 
equities  on  the  other  side.  Defects  which  are  of  the  very  es- 
sence of  the  power  will  not  be  relieved  against,  but  mere  formal 
defects  will. 

The  powers  here  referred  to  are  powers  which  have  been 
created  by  way  of  use,  and  not  bare  authorities  conferred  by 
law.^ 

183.  Miscellaneous  cases. 

Besides  the  cases  above  stated,  there  is  a  number  of  mis- 
cellaneous instances  in  which  equity  will  give  relief  on  the 
ground  of  accident.  Thus,  where  an  administrator  or  executor 
pays  debts,  legacies,  or  distributive  shares,  under  the  impression 
that  the  assets  are  sufficient  for  all  demands,  and  it  afterwards 
turns  out,  from  unexpected  occurrences,  that  the  assets  are 
•insufficient;  or  an  annuity  is  directed  by  will  to  be  secured  on 
public  stock,  and  an  investment  is  made,  sufficient  at  the  time, 
but  afterw^ards  rendered  insufficient  by  action  of  Parliament  in 
reference  to  the  stock ;  or  where  a  testator  cancels  a  former  will 
upon  the  presumption  that  a  later  will,  made  by  him,  is  duly 
executed,  when  it  is  not;  or  when  boimdaries  have  been  acci- 
dently  confused;  or  there  has  i)een  an  accidental  omission  to 
endorse  a  {)romissory  note;  in  all  of  the  above  cases,  and,  in- 

424,  and  Laurel  Creek  Co.  r.  Brown-  consideration,  and  will  complete 
ing,  1)9  Va.  528;  Negaunee  Iron  Co.  gifts  made  on  such  a  consideration 
V.  Iron  ("liffs  Co.,  134  Mich.  204;  in  favor  of  a  donor's  intention  after 
Lindelse  ?'.  Realty  C'o.,  146  Fed.  Rep.  death.  This  is,  perhaps,  a  philosoph- 
630.  ical  statement  of  the  principle;  the 
1  The  principle  upon  which  relief  cases,  however,  are  ordinarily  re- 
in the  case  of  defective  execution  of  ferred  to  the  two  heads  under  which 
powers  rests  is  said  by  Mr.  Adams  they  are  treated  in  this  work,  viz., 
(Doctrine  of  Equity,  98)  to  be  that  Accident  and  Mistake, 
equity   will   recognize  a  meritorious  2  yge  Bright  v.  Boyd,  1  Story,  478. 

19 


290 


ACCIDENT   AND   MISTAKE. 


[part  II, 


deed,  it  may  be  safely  said,  in  any  case  of  accident,  where  the 
party  injured  has  not  been  in  default,  and  the  party  on  the 
other  side  has  no  special  equity  to  protect  him,  a  Court  of  Chan- 
cery will  give  relief  suited  to  each  particular  case,  subject  to 
the  general  rules  already  stated.^  Moreover,  the  same  prin- 
ciple which  leads  a  court  of  equity  upon  proper  proof  to  estab- 
lish by  its  decree  the  existence  of  a  lost  deed,  and  thus  make  it 
a  matter  of  record,  will  justify  it,  upon  like  proof,  to  declare 
by  its  decree  the  validity  of  a  title  resting  in  the  recollection  of 
witnesses,  and  thus  make  the  evidence  of  title  a  matter  of 
record.' 


184.  Equitable  remedies  in  cases  of  mistake. 

Having  noticed  the  head  of  equitable  jurisdiction  which  has 
been  termed  "Accident,"  the  next  subject  requiring  consider- 
ation is  that  of  Mistake. 

The  jurisdiction  of  chancery  to  correct  mistakes  in  deeds  was 
assumed  at  a  very  early  day.^  The  reason  for  its  exercise  was 
twofold :  first,  because  of  the  implicit  credit  which  courts  of  law 
gave  to  the  seal  of  a  party  unless  fraud  was  proved;  and  second, 
because  all  the  relief  which  a  court  of  law  could  possibly  afford 
would  be  to  treat  the  instrument  as  a  nullity,  in  which  case  the 
intention  of  the  parties  would,  after  all.  be  defeated  in  many 
instances;  whereas  in  equity  the  instrument  could  be  reformed, 
and  relief  granted  upon  the  instrument  when  so  corrected  in 
the  same  manner  as  if  it  had  been  made  perfect  in  the  first  in- 
stance,^ and  the  true  meaning  of  the  parties  to  a  transaction 
could  thus  be  expressed  and  carried  out. 

This  reference  to  the  superiority  of  the  equitable  remedy  in 


1  Story's  Eq.  Juris5p.  §§  90  f<  aeq. 
See,  in  this  connection,  also,  cases 
where  equity  will  interfere  to  pre- 
\cnt  the  enforcement  of  judgments 
at  law  where  the  defendant  has  lost 
his  legal  rights  through  accident. 
Post.  §  409,  Injunctions  to  Restrain 
Proceedings  at  Law.  See,  moreover, 
Hamburg-Bremen  Fire  Ins.  Co.  v. 
Pulzer  Manuf.  Co.,  42  U.  S.  App.  12.3, 
where  mistake  in  the  amoimt  of  a  ver- 
dict, due  to  an  accident,  was  relieved 
against  after  the  term,  ami  Gill  v. 
Pelkey,  54  Oh.  St.  348,  where  pro- 


ceedings  in   a    Probate   Court   were 
corrected. 

2  By  Field,  J.,  in  Sharon  v.  Tucker, 
144  U.  S.  533-548. 

3  1  Spence,  634. 

*  Ballance  r.  Underbill,  3  Scam. 
459;  Willis  v.  Henderson,  4  Id.  18; 
Firemen's  Ins.  Co.  r.  Powell,  13  B. 
Mon.  314;  Shelby  r.  Smith,  2  A.  K. 
Marsh.  504;  Ring  v.  Ashworth,  3 
Cole  (la.),  452.  See  pos(,  §  470,  as 
to  how  far  this  will  be  done  in  parol 
contracts  affecting  realty. 


CH.  I.] 


ACCIDENT   AND   MISTAKE. 


291 


cases  of  mistake  naturally  leads  to  the  remark  that  at  present 
the  only  points  to  be  considered  are  those  which  relate  to  the 
nature  of  mistakes,  their  different  kinds,  the  circumstances 
under  which  equity  will  afford  relief,  and  the  occasions  which 
most  frequently  arise  for  the  interposition  of  the  chancellor. 
The  character  of  the  remedy  afforded  will  be  attempted  to  be 
explained  and  discussed  in  the  chapter  on  Reformation  and 
Cancellation.^ 

185.  Deflnitioii  of  Mistake. 

A  mistake  exists  when  a  person,  under  some  erroneous  con- 
viction of  law  or  fact,  does,  or  omits  to  do,  some  act  which  but 
for  the  erroneous  conviction  he  would  not  have  done  or  omitted.^ 
It  may  arise  either  from  unconsciousness,  ignorance,  forgetful- 
ness,  imposition,  or  misplaced  confidence.^ 

Where  the  mistake  arises  from  imposition  or  misplaced  con- 
fidence, relief  may  be  had  on  the  ground  of  fraud."*  Where  it 
arises  from  unconsciousness,  ignorance,  or  forgetfulness,  no 
element  of  fraud  exists,  and  redress  must  be  obtained,  if  ob- 
tained at  all,  on  the  distinct  equitable  basis  of  mistake. 

186.  Mistakes  of  two  kinds — of  Law  and  of  Fact. 

The  most  natural  division  of  the  subject  under  consideration, 
and  that  which  is  usually  made,  is  into  Mistakes  of  Law,  and 
Mistakes  of  Fact. 

187.  Mistakes  of  Law  ;  Hunt  v.  Rousmaniers  Adiiirs.  ;  Oris- 
wold  v   Hazard. 

The  general  rule  of  the  common  law  is  that  a  mistake  of  law 

is  no  ground  for  relief.^     This  principle,  which  is  one  famihar  to 


1  Post,  Part  III.,  Chap.  III.,  Greene 
V.  Smith,  160  N.  Y.  533;  Desert  Nat. 
Bank  r.  Dinwoodey,  17  Utah,  43. 

2  Haynes's  OutHnes  of  Equitj',  132. 

3  Kerr  on  Fraud  and  Mistake,  396; 
Story's  Eq.  §  110.  See  Kowalke  r. 
The  Milwaukee  Electric  Railway  and 
Light  Co.,  103  Wis.  472. 

*  See  Beckett  v.  Heston,  49  N.  J. 
Eq.  510;  Smith  v.  Smith,  134  N.  Y. 
62. 

5  Manser's  Case,  2  Coke,  3,  b.  Con- 
tracts made  on  the  faith  of  the  law 


as  enunciated  in  a  decision  of  a  court 
of  last  resort,  in  the  absence  of  fraud, 
misrepresentation  or  want  of  knowl- 
edge of  all  the  facts,  will  not  be  set 
aside  because  of  a  subsequent  deci- 
sion by  the  same  court  overruling  the 
former  one,  since  a  mistake  of  law  is 
no  ground  of  relief.  Pittsburg  Iron 
Co.  V.  Lake  Superior  Iron  Co.,  118 
Mich.  109. 

Mere  ignorance  of  the  law  standing 
alone  does  not  constitute  any  de- 
fence  against    its  enforcement,   and 


292 


ACCIDENT    AND    MISTAKE. 


[part  II. 


all  systems  of  jurisprudence,  is,  in  the  common  law,  embodied 
in  the  maxim  "  Ignorantia  legis  neminem  excusat.^'  As  a  general 
rule  the  same  principle  may  be  said  to  exist  in  equity ;  ^  but  this, 
like  many  other  general  rules,  must  be  taken  with  qualifications. 
While  "SL  mere  mistake  of  law,  stripped  of  all  other  circum- 
stances, constitutes  no  ground  for  the  reformation  of  written 
contracts,"  yet  "the  rule  that  an  admitted  or  clearly  established 
misa])prchension  of  the  law  does  create  a  basis  for  the  inter- 
ference of  courts  of  equity,  resting  on  discretion  and  to  be  exer- 
cised only  in  the  most  unquestionable  and  flagrant  cases,  is 
certainly  more  in  consonance  with  the  best  considered  and  best 
reasoned  cases  upon  this  point,  both  English  and  American."  ^ 
The  cases  in  which  mistakes  of  law  will  not,  and  those  in  which 


a  mistake  of  law,  pure  and  simple, 
without  the  addition  of  any  circum- 
stance of  fraud  or  misrepresentation 
constitutes  no  basis  for  relief  at  law 
or  in  equity  and  forms  no  excuse  in 
favor  of  the  party  asserting  that  he 
made  the  mistake.  Utermehle  r. 
Norment,  197  V.  S.  40. 

1  Hunt  r.  Rousmanier's  Adm'rs,  8 
Wheat.  174;  1  Pet.  1;  1  Am.  Lead. 
Cas.  700;  Rogers  r.  Ingham,  o  Ch.  D. 
351  (and  .see  particularly  the  re- 
marks of  James,  L.  J.,  on  p.  356, 
and  of  Mellish,  L.  J.,  on  p.  357); 
Champlin  r.  Laytin,  18  Wend.  407; 
Shotwcll  '".  Murra}-,  1  Johns.  Ch.  512; 
Newburgh  Sav.  Bk.  v.  Town  of 
Woodbury,  173  X.  Y.  55;  McMurray 
r.  St.  Louis  Co.,  33  Mo.  377;  Peters 
?'.  Florence,  38  Pa.  194;  Gwynn  v. 
H.iinilton,  29  Ala.  233;  Rankin  r. 
Mortimere,  7  Watts,  372;  Good 
V.  llerr,  7  W.  &  B.  253;  Norris  v. 
Crowe,  206  Pa.  446;  Meckley's  Es- 
tate, 20  Pa.  478;  Gross  v.  Leber,  47 
Id.  520;  Menges  r.  Oyster,  4  W.  & 
S.  20;  McAninch  r.  Laughlin,  13  Pa. 
371;  Glenn  v.  Statler,  42  la.  107; 
Carpenter  r.  Jones,  44  Md.  625; 
Baker  v.  Baker,  94  Md.  627;  Mills 
V.  Miller,  2  Woolw.  (Xeb.)  299; 
Smith  I'.  McDougal,  2  Cal.  586;  State 
V.  Reigart,  1  Gill,  1;  Mellish  v.  Rob- 


ertson, 25  Vt.  603;  State  ex  rel.  v. 
Britton,  102  Ind.  214;  Goltra  v. 
Sanasack,  53  III.  456;  Lyon  v.  San- 
ilers,  23  Miss.  530;  Dill  r.  Shahan,  25 
Ala.  694;  Wintermute  v.  Snyder,  17 
N.  J.  Eq.  498;  Hampton  r.  Nichol- 
son, 23  Id.  427;  Trigg  v.  Read,  5 
Humph.  529;  Storrs  v.  Barker,  6 
Johns.  Ch.  166;  Freeman  v.  Curtis, 
51  Me.  140;  Brown  v.  Armistead,  6 
Rand.  594;  Ferguson  r.  Ferguson,  1 
Geo.  Dec.  135;  Atlanta  Trust  &  Bkg. 
Co.  V.  Nelms,  116  Ga.  915;  Hoover  v. 
Reilly,  2  Abb.  (U.  S.)  471;  Throck- 
morton V.  Throckmorton,  91  Va.  42; 
.see  Worlcy  v.  Tuggle,  4  Bush,  168; 
Midland  Great  Western  Ry.  Co.  v. 
Johnson,  6  H.  L.  Cas.  798;  City  of 
Broken  Bow  r.  Broken  Bow  Water 
Works  Co.,  57  Xeb.  548;  Atherton  v. 
Roche,  192  111.  252;  Word  v.  Davis, 
107  Ga.  780;  Hereu  v.  Hereu,  6 
Ariz.  281;  Utermehle  7-.  Xorment, 
197  U.  S.  40. 

2  Story's  Eq.,  nbi  supra;  Snell  v. 
Ins.  Co.,  98  U.  S.  90,  91;  Griswold  v. 
Hazard,  141  Id.  284;  Allcard  v. 
Walker  [1896],  2  Ch.  381;  Ledyard 
;'.  Phillips,  32  Mich.  13;  Eastman  r. 
Provident  Assoc'n,  65  X.  H.  176; 
Park  V.  Blodgett,  64  Conn.  28;  Parish 
V.  Camplin,  139  Ind.  1;  Filker  v. 
Mowry,  69  N.  H.  164. 


CH.  I.]  ACCIDENT    AND    MISTAKE,  293 

they  will  constitute  ground  for  relief  in  equity,  are  illustrated 
by  two  decisions  of  the  Supreme  Court  of  the  United  States. 

The  first  of  these  is  the  leading  case  of  Hunt  v.  Rousnianier's 
Administrators.^  There  a  letter  of  attorney  to  execute  a  bill  of 
sale  of  a  ship  was  taken  by  a  creditor  from  a  debtor,  under  the 
distinct  impression,  induced  by  the  advice  of  counsel,  that  it 
would  be  as  valid  a  security,  under  all  circumstances,  as  a  mort- 
gage. The  debtor  subsecjuently  died;  and  as  the  letter  of  at- 
torney was  revoked  by  his  death,  the  security  of  the  creditor 
was  invalidated.  It  was  held  that  the  misapprehension  of  the 
parties  as  to  the  legal  effect  of  the  instrument  was  no  ground 
for  relief;  and  it  was  said  that  it  would  be  unprecedented  for 
a  court  of  equity  to  decree  another  security  to  be  given  under 
such  circumstances. 

The  other  decision  is  Griswold  v.  Hazard.^  In  that  case  one 
Durant,  a  citizen  and  resident  of  New  York,  was  arrested  under 
a  writ  of  ne  exeat  while  temporarily  at  Newport,  Rhode  Island. 
To  obtain  a  release  from  custody  under  the  writ,  he  executed  a 
bond,  with  Griswold  and  Bradford  as  sureties,  the  condition 
of  which  was  that  Durant  should  "abide  and  perform  the  orders 
and  decrees  of  the  Supreme  Court  of  the  State  of  Rhode  Island 
in  the  suit  in  equity  of  Isaac  P.  Hazard  and  others  against  the 
said  Durant,"  then  pending  in  said  court.  In  that  suit  a  decree 
was,  fourteen  years  afterwards,  ol^tained  for  a  very  large  sum; 
the  amount  called  for  by  the  decree  was  not  paid  by  Durant ;  and 
thereu]3on  an  action  at  law  was  brought  on  the  bond  against 
Griswold  and  a  judgment  recovered.  Pending  this  common-law 
action  on  the  bond,  bills  in  equity  were  filed  by  Griswold  for  an 
injunction  to  restrain  tic  ])roceedings  at  law.  It  was  alleged  in 
these  bills  that  Griswold  "had  intended  to  sign  and  believed,  at 
the  time,  that  he  signed  a  bond  which  simply  bound  him  for  the 
appearance  of  Durant,"  and  that  its  execution  in  its  actual  foi-m 
was  the  result  of  mistake.  The  Supreme  Court  held  (revei'sing 
the  decree  below)  that  the  alleged  mistake  was  clearly  estab- 
lished by  the  proofs,  that  under  the  circumstances  Griswold 
was  entitled  to  relief  against  this  mistake  of  law,  and  that  tlie 
action  on  the  bond  should  l)e  perpetually  enjoined.  The  ground 
of  the  decision  was  distinctly  that  of  mistake  as  to  the  legal  effect 

18  Wheat.   174;   1   Pet.   1,   3,   14.      cataquis    R.    R.    Co.,    88    Me.    I'Jl; 
See,  also,  Eldridge  v.  Dexter  &  Pis-      Porter  v.  Jefferies,  40  S.  Car.  \)2. 

2  141  U.  S.  260,  284. 


294 


ACCIDENT    AXD   MISTAKE. 


[part  II. 


of  the  paper;  ^  and  the  difference  between  the  two  classes  of 
cases,  referred  to  above,  w^as  expressly  recognized." 

In  the  class  of  which  Hunt  v.  Rousinanier's  Administrators 
is  the  type,  fall  the  authorities  mentioned  in  the  note  to  the  be- 
ginning of  this  section;^  and  of  these  Rogers  v.  Ingham  '^  may 
be  considered  the  leading  modern  English  case.  There  an  execu- 
tor, acting  on  the  advice  of  counsel  on  the  constmction  of  a 
will,  proposed  to  divide  a  fund  between  two  legatees  in  certain 
pro|iortions.  One  of  the  legatees,  being  dissatisfied,  took  the 
opinion  of  counsel,  which  agreed  with  the  former  opinion.  The 
executor  then  divided  and  paid  over  the  fund  in  accordance  with 
the  opinions.  The  dissatisfied  legatee  afterwards  filed  a  bill, 
alleging  that  the  will  had  been  mistakenly  construed ;  but  it  was 
held  that  the  mistake  afforded  no  ground  for  relief.  "Where 
people,"  said  Lord  Justice  James,  "have  knowledge  of  all  the 
facts  and  take  advice,  and,  whether  they  get  proper  advice  or 
not,  the  money  is  divided,  and  the  business  is  settled,  it  is  not 
for  the  good  of  mankind  that  it  should  be  re-opened  by  one  of 
the  parties  saying,  'You  have  received  your  money  by  mistake. 
I  acquiesced  in  your  receipt  of  it  under  that  mistake,  and,  there- 
fore, I  ask  you  to  give  it  to  me  back. '  "  ^ 

On  the  other  hand,  in  the  class  of  cases  of  which  Griswold 
V.  Hazard  ^  is  an  example,  may  fall  such  decisions  as  that  in 
Lansdown  v.  Lansdown.^  In  that  case  the  eldest  of  three  brothers 
divided  lands,  of  which  the  second  brother  had  died  seised, 
with  the  youngest,  under  the  mistaken  impression,  confirmed 
by  a  friend  of  both  parties,  who  had  been  consulted,  that  land 
could  not  ascend,  and  that  he  was  not,  therefore,  his  brother's 
heir.    It  was  held  that  he  was  entitled  to  relief.* 


1  See  l-il  U.  S.  286. 

2  Id.  284.  See,  also,  Wilson  v.  Ott, 
173  Pa.  253;  Lee  v.  Percival,  85 
Iowa,  639;  Renard  r.  ("link,  91  Mich. 
1;  Hopwood  V.  McCausland,  120  la. 
218. 

3  Ante,  p.  292.  See,  also,  Zollman 
V.  Moore,  21  Gratt.  320;  Broadwell 
V.  Broadwell,  1  Gilm.  599;  Allen  v. 
Elder,  76  Ga.  674;  Calverly  t'.  Harper, 
40  111.  App.  96. 

4  3  Ch.  Div.  351.  See  Allcard  r. 
Walker  [1896],  2  Ch.  381. 

5  See  Rogers  v.  Ingham,  3  Ch.  Div. 


351;  Brett's  Lead.  Cas.  in  Eq.  (Am. 
ed.)  131;  Phillips's  Ex'r  v.  McConica, 
Guardian,  59  Ohio,  1. 

e  Supra,  p.  293. 

7  Mosley,  364.  See,  also,  Eagles- 
field  V.  Marquis  of  Londonderry,  4 
Ch.  D.  693  (opinion  of  Jessel,  M.  R.); 
Thompson  v.  Eastwood,  2  App.  Cas. 
215;  Shear  v.  Robinson,  18  Fla.  379; 
Kornegay  v.  Everett,  99  N.  C.  30; 
Haussman  v.  Burnham,  59  Conn.  117; 
Standard  Oil  Co.  of  Kentucky  v. 
Hawkins,  46  U.  S.  App.  115. 

s  See  the  remarks  of  Chief  Justice 


I 


CH.  I.] 


ACCIDENT   AND    MISTAKE. 


295 


It  has  been  suggested  by  a  very  distinguished  Equity  Judge, 
Lord  Westbury,  that  the  conflicting  cases  in  regard  to  the  ap- 
phcation,  in  equity,  of  the  maxim  ignorantia  juris  non  excumt 
might  be  reconciled  by  considering  that  a  distinction  exists  be- 
tween ''jus"  as  used  to  indicate  general  law,  and  the  same  word 
when  employed  to  denote  private  right. ^  But  a  pure  mistake  of 
law  in  reference  to  individual  rights  would  seem  to  be,  properly, 
no  more  remediable  in  equity  than  a  pure  mistake  as  to  public 
law;  and  if,  on  the  other  hand,  there  were  circumstances  which 
would  prevent  the  application  of  the  maxim  in  cases  of  indi- 
vidual rights,  those  same  circumstances  would  be  equally  effec- 
tive in  justifying  relief  when  mistakes  are  made  in  the  rules  of 
general  law.  The  distinction  suggested  by  Lord  Westbury  can- 
not, therefore,  be  considered  sound.'  It  may  be  added,  just  here, 
that  a  mistake  of  the  law  of  another  state  is  a  mistake  of  fact.^ 

188.  Misrepresentation  and  Snrprise. 

The  true  conclusion,  as  to  the  general  rule,  would  seem  to  be 
that  equity  will  not  interfere  in  the  case  of  a  pure  mistake  of  law ; 
but  that  any  additional  circumstances  will  readily  be  laid  hold 
of  by  the  court,  as  constituting  vsufficient  grounds  for  interposi- 
tion."* Thus,  where  ignorance  of  the  law  exists  on  one  side,  and 
that  ignorance  is  known  and  taken  advantage  of  by  the  other 


Marshall  on  this  case  in  Hunt  v. 
Rousmanier's  Adm'rs,  8  Wheat.  215. 
See,  also,  Snell  v.  Ins.  Co.,  98  U.  S. 
90,  91;  Bigelow  v.  Barr,  4  Ohio,  358, 
and  Williams  v.  Champion,  6  Id.  169; 
Lee  V.  Percival  (la.),  52  N.  W.  Rep. 
54.3;  Clark  r.  Hershy,  52  Ark.  473. 

1  Cooper  V.  Phibbs,  2  H.  L.  Cas. 
170.  See,  also,  Beauchamp  v.  Winn, 
L.  R.  6  H.  L.  234;  Jones  v.  Clifford,  3 
Ch.  D.  779;  AUcard  v.  Walker  [1896], 
2  Ch.  381;  Kerr  on  Fraud  and  Mis- 
take, 398  (Bump's  ed.);  Matlock  v. 
(ilover,  63  Tex.  231;  Toland  v.  Corey, 
6  Utah,  392.  If  the  fee-simple  owner 
of  a  tract  of  land,  in  ignorance  of  his 
rights,  honestly  believes  that  he  owns 
only  an  undivided  one-third  interest 
therein,  and  sells  and  conveys  his 
whole  interest  to  the  person  claim- 
ing   to    own    the    other    two-thirdi) 


thereof,  this  presents  a  case  of  mu- 
tual mistake  against  which  equity 
will  grant  relief.  Generally  a  mis- 
take of  law,  pure  and  simple,  is  not 
an  adequate  ground  for  relief,  but 
the  maxim  that  ignorance  of  the 
law  is  no  excuse  is  confined  to  mis- 
takes of  the  general  rules  of  law,  and 
has  no  application  to  the  mistakes 
of  persons  as  to  their  own  private 
legal  rights  and  interests.  The  latter 
stand  on  the  footing  of  mistakes  of 
fact  and  furnish  ground  for  equitalile 
relief.    Burton  v.  Haden,  108  Vu.  51. 

2  See  the  authorities  cited  on  p. 
292,  under  the  cases  of  the  Hunt  v. 
Rousmanier  tj^pe,  and  Sears  v.  Crand 
Lodge,  163  N.  Y.  374. 

3  Morgan  v.  Bell,  3  Wash.  St.  554. 
^Haviland   v.   Willets,    141    N.   Y. 

35;  S^.urlock  v.  Brown,  91  Tenn.  241. 


296 


ACCIDENT    AND    MISTAKE. 


[part  II. 


party,  the  former  will  be  relieved.  More  particularly  will  this  be 
so,  if  the  mistake  was  encouraged  or  induced  by  misrepresenta- 
tion of  the  other  party. ^ 

Relief  is  sometimes  given,  also,  in  cases  of  surprise— that  is, 
w^here  parties  have  entered  into  arrangements  unadvisedly  and 
improvidently,  and  without  due  deliberation;'  so,  also,  in  some 
cases  where  the  law  is  confessedly  doubtful,  and  the  question 
is  one  about  which  ignorance  may  well  be  supposed  to  exist.'"' 

189.  Compromises  of  doubtful  rights  ;  family  arrange- 
meuts. 

But  compromises  of  doubtful  rights  are  favored  both  in  equity 
and  at  law,  and  no  relief  can  be  had  if  it  afterwards  turns  out 
that  the  right  surrendered  was  entirely  valid  and  capable  of  as- 
sertion. It  has  been  truly  said  that  every  compromise  of  a  right 
necessarily  imphes  that  the  party  possesses  some  right  which  is 
surrendered;  and  he  shall  not,  therefore,  afterw^ards  be  heard  to 
complain,  if  it  subsequently  appears  that  his  right  was  more 
certain  and  well  settled  than  it  was  at  first  supposed  to  be."* 
Family  compromises,  especially  if  they  are  made  in  good  faith 
and  with  full  disclosure,  are  favored  in  equity,  and  may  be  sus- 
tained by  the  court,  "albeit,  perhaps,  resting  upon  grounds 
which  would  not  have  been  considered  satisfactory  if  the  transac- 
tion had  occurred  between  strangers."  ^ 


1  Scholefield  v.  Templer,  4  De  G.  & 
J.  429;  Cooper  v.  Phibbs,  L.  R.  2  H. 
L.  149;  Whelen's  App.,  70  Pa.  425; 
Wheeler  v.  Smith,  9  How.  55;  Metro- 
politan Bank  v.  Godfrey,  23  111.  579; 
Bryan  v.  Masterson,  4  J.  J.  ]\Iarsh. 
225;  Hardigree  v.  Mitchum,  51  Ala. 
154;  BaU  v.  Hunt,  77  Ind.  355; 
Schuttler  v.  Brandfass,  41  W.  Va. 
201;  Kerr  on  Frautl  and  Mistake,  400; 
Marsh  r.  McXair,  4.S  llun,  117;  Rauen 
V.  Ins.  Co.,  129  la.  725. 

2  Pusey  V.  Desbouvrie,  3  P.  Wms. 
315;  Evans  v.  Llewellyn,  2  Bro.  C.  R. 
150;  1  Cox,  333;  Billings  v.  Aspen 
Mining  Co.,  10  U.  S.  App.  1. 

3  Cumberland  Co.  v.  Sherman,  20 
Md.  117;  Champlin  v.  Laytin,  IS 
Wend.  407;  Garner  v.  Garner,  2  Dess. 
437;  Freeman  v.  Curtis,  51  Me.  140; 


Moreland  v.  Atchison,  19  Tex.  303; 
Green  v.  Morris  R.  R.  Co.,  12  N.  J. 
Eq.  165;  Martin  v.  N.  Y.  S.  &  C.  R. 
Co.,  36  Id.  109;  Haden  v.  Ware,  15 
Ala.  149;  Reservoir  Co.  v.  Chase,  14 
Conn.  123. 

^  Kerr  on  Fr.  &  M.  403;  Hennessy 
V.  Bacon,  137  U.  S.  78;  Trigg  v.  Read, 
5  Humph.  529;  Good  v.  Herr,  7  W.  & 
S.  253;  Taylor  v.  Patrick,  1  Bibb,  16S; 
Durham  r.  Wadlington,  2  Strob.  Eq. 
258;  Brandon  v.  Medley,  1  Jon.  Eq. 
313;  Bell  v.  Lawrence,  51  Ala.  160; 
Clifton  ('.  Cockburn,  3  My.  &  K.  76; 
Bentley  v.  Mackay,  31  Beav.  143; 
Powell  V.  Heisler,  10  Or.  412;  note 
to  Stapilton  v.  Stapilton,  2  Lead.  Cas. 
Eq.  1710  et  seq. 

5  Westby  v.  Westby,  2  D.  &  War. 
503,  525;  Lies  v.  Stub,  6  Watts,  48; 


CH.  I.] 


ACCIDENT    AND    MISTAKE. 


297 


But  while  such  a  compromise  is  to  be  regarded  with  favor, 
yet  when  the  party  setting  it  up  comes  in  to  ask  the  active  inter- 
ference of  a  court  of  equity  for  its  enforcement,  relief  will  not  be 
granted  unless  the  case  falls  within  the  rules  which  regulate  bills 
for  specific  performance.  If  the  terms  of  the  arrangement  are 
unconscionable,  or  the  evidence  shows  that  the  minds  of  the 
parties  have  not,  in  fact,  come  together,  relief  will  be  refused.^ 

It  appears  to  be  settled  by  the  authorities  that  money  paid 
under  a  mistake  of  law  cannot  be  recovered  back  either  in  equity 
or  at  law.^ 

The  court  will  not  interfere  where  the  parties  cannot  be  re- 
stored to  their  original  position,  or  where  the  rights  of  bona  fide 
purchasers,  without  notice,  have  intervened.^ 


190.  Mistakes  of  Fact ;  different  l(iuds. 

A  mistake  of  fact  is  a  mistake  not  caused  by  the  neglect  of 
legal  duty  on  the  part  of  the  person  making  the  mistake,  and 
consisting  in  an  unconsciousness,  ignorance,  or  forgetfulness  of  a 
fact  past  or  present,  material  to  the  transaction ;  or  in  the  belief 
in  the  present  existence  of  a  thing  material  to  the  transaction 
which  does  not  exist;  or  in  the  past  existence  of  a  thing  which 
has  not  existed.^  But  a  mistake  as  to  the  probability  of  the 
occurrence  of  a  future  event  is  not  a  mistake  of  fact.^ 

The  power  of  a  court  of  equity  to  correct  mistakes  of  fact  is 
a  very  wide  and  general  one.*'    Relief,  when  deeds  or  other  in- 


Shartel's  Appeal,  64  Pa.  25;  Burk- 
holder's  Appeal,  105  Id.  39;  Wilen's 
Appeal,  Id.  121;  Chandler  v.  Pome- 
roy,  143  U.  S.  318;  Dakin  v.  Rumsey, 
104  Mich.  636;  Korne  v.  Kome,  30 
W.  Va.  1;  Price  v.  Price,  133  N.  C. 
494. 

1  Wistar's  Appeal,  80  Pa.  484;  Mc- 
Harry  v.  Irvin,  85  Ky.  322.  See, 
also,  Hickman  v.  Berens  [1895],  2  Ch. 
638. 

2  Kerr  on  Fraud  and  Mistake,  401, 
402;  Rogers  v.  Ingham,  3  Ch.  D.  351, 
356,  357;  Currie  v.  Goold,  2  Mad.  164. 
See,  also.  Railroad  Co.  v.  Soutter,  13 
Wall.  524;  Bank  of  U.  S.  v.  Daniel, 
12  Pet.  32;  Haven  v.  Foster,  9  Pick. 
112;  Pinkham  v.  Gear,  3  N.  H.  163; 
Hubbard  v.  Martin,  8  Yerg.  498;  Ege 


V.  Koontz,  3  Pa.  109;  Miles  v.  Ste- 
vens, Id.  21;  Jones  v.  Watkins,  1 
Stew.  81;  Clarke  v.  Dutcher,  9  Cow. 
674;  Campbell  v.  Clark,  44  Mo.  App. 
249;  Manuf.  Nat.  Bank  v.  Swift,  70 
Md.  515. 

a  Kilpatrick  v.  Strizier,  67  Ga.  247; 
Lowe  V.  Allen,  68  Id.  225;  Cass  Co. 
V.  Oldham,  75  Mo.  50;  Hewitt  v. 
Powers,  84  Ind.  295;  Kerr  on  Fr.  & 
M.  436;  Neal  v.  Reynolds,  38  Kan. 
432;  Fink  v.  Farmers'  Bank,  178  Pa. 
154;  Pittsburg  Iron  Co.  v.  Lake  Su- 
perior Iron  Co.,  118  Mich.  109;  Bar- 
ton V.  Mayers,  183  111.  360;  Cole  v. 
Fickett,  95  Me.  265. 

*  Kerr  on  Fraud  and  Mistake,  406. 

s  Parke  v.  Boston,  175  Mass.  464. 

6  Williams   v.    United    States,    138 


298 


ACCIDKXT    AND    MISTAKE. 


[part  II. 


strunients  are  executed  by  mistake  or  inadvertence,  as  well  as 
upon  false  suggestions,  is  a  common  head  of  equity  jurisdiction/ 
and  may  be  said  to  exist  (subject  to  the  (lualifications  hereafter 
mentioned)  in  all  cases  in  which  there  is  not  a  complete  remedy 
at  law.  The  adequacy  of  the  common-law  remedy  is  probably 
the  best  test  of  the  jurisdiction.  Thus  (to  illustrate  by  two  cases 
in  Illinois)  a  bill  has  been  sustained  to  correct  a  mistake  in  a 
master's  deed  in  a  foreclosui'e  proceedings;  -  whereas  relief  in  the 
case  of  an  attachment  bond  has  been  refused — the  legal  remedy 
being  adecjuate.^ 

The  mistake  may  consist  either  in  the  circumstance  that  the 
instrument  by  which  the  parties  designed  to  express  their  in- 
tention does  not  so  express  it,  or  does  not  express  it  accurately; 
or  in  the  circumstance  that  the  intention  of  the  parties,  though 
correctly  expressed,  has,  nevertheless,  been  reached  through 
some  misapprehension  or  ignorance.  In  one  case  the  intention 
is  erroneously  expressed;  in  the  other  the  intention  is  founded 
upon  error.  The  relief  ])ertinent  to  the  first  case  is  correction; 
to  the  second,  rescission.-* 

Thus,  where  there  was  an  agreement  that  part  of  the  purchase- 
money  of  certain  real  estate  should  be  paid  by  a  judgment  note 
for  a  certain  sum  "with  interest,"  and  the  words  "with  in- 
terest" were  omitted  from  the  note  by  the  mistake  of  the  scriv- 
ener by  whom  it  was  written,  it  was  held  that  this  was  such  a 
mistake  as  equity  would  correct.  The  intention  of  the  parties 
had  not  been  accurately  expressed.'' 


U.   S.   517;  Riegel  v.  Insurance  Co., 
140  Pa.  20:i;  153  Id.  134. 

1  Hughes  V.  United  States,  4  Wall. 
235;  Germania  Iron  Co.  v.  United 
States,  165  U.  S.  383;  Riegel  v.  Ins. 
Co.,  153  Pa.  134. 

2  Foster  v.  Clark,  79  111.  225;  follov- 
iug  De  Reimer  v.  Cantillon,  4  Johns. 
Ch.  85.  See,  also,  Roberts  r.  Talia- 
ferro, 7  la.  Ill;  Ehleringer  v.  Mori- 
arty,  10  Id.  78. 

3  Craft  V.  Dickens,  78  111.  131.  See 
Puterbaugh  v.  Elliott,  22  Id.   l.")7. 

*  See  Snell  v.  Insurance  Co.,  !>8 
U.  S.  85;  Thompson  v.  Insurance  Co., 
136  Id.  208;  Hurd  v.  Hall,  12  Wis. 
112;  Andrews  v.  .\ndrews,  81  Me.  337; 


K>^ler  v.  Boll,  182  111.  171;  Orr  v. 
Echols,  119  Ala.  340;  Curtis  v.  Albee, 
167  N.  Y.  360. 

5  Gump's  Appeal,  65  Pa.  476.  See, 
also,  Talley  v.  Courtney,  1  Heisk.  715; 
Newcomer  ?•.  KHne,  11  Gill.  &  J.  457; 
Hathaway  v.  Brady,  23  Cal.  121; 
Russell  r.  Mixer,  42  Id.  475;  Keith  ?•. 
Globe  Ins.  Co.,  52  111.  518;  Harrison 
V.  Jameson,  3  J.  J.  Mar-sh.  232;  Rigs- 
bee  V.  Trees,  21  Ind.  227;  Groff  r. 
Rohrer,  35  Md.  327;  Boulden  v. 
Wood,  96  Md.  332;  Glass  v.  Hulbert, 
102  Mass.  34;  Stockbridge  Iron  Co. 
7'.  The  Hudson  Iron  Co.,  Id.  48; 
Hamilton  v.  Asslin,  14  S.  &  R.  448; 
Gower  v.  Sterner,  2  Whart.  75;  Farm- 


CH.  I.] 


ACCIDENT    AND    MISTAKE. 


299 


So,  again,  where  it  is  shown  that  the  intention  of  the  parties 
was  that  the  instrument  should  be  under  seal,  but  the  seals 
were  omitted  by  mistake,  a  Court  of  Chancery  will  direct  them 
to  be  affixed.^  And  so  where  a  mortgage  has  been  cancelled 
or  satisfied  by  mistake,  its  lien  will  be  restored. - 

On  the  other  hand,  when  there  is  a  settlement  of  accounts 
made  between  parties  which  correctly  expresses  their  intention. 


ers'  and  Drovers'  Bank  v.  Fordyce,  1 
Pa.  456;  Chalfant  v.  Williams,  35  Id. 
212;  Huss  v.  Morris,  63  Id.  372;  Jenk- 
ins V.  Davis,  141  Id.  276;  Scales  v. 
Ashbrook,  1  Mete.  358  (Ky.) ;  Dennis 
V.  North.  Pac.  Ry.  Co.,  20  Wash.  320; 
Worley  v.  Tuggle,  4  Bush,  168;  Mills 
V.  Lockwood,  42  111.  Ill;  Dinwiddle 
V.  Self,  145  Id.  290;  Purvines  v.  Harri- 
son, 151  Id.  219;  Waterman  v.  Dut- 
ton,  6  Wis.  265;  Deford  v.  Mercer, 
24  la.  118;  Doty  v.  Judson,  2  Root, 
427;  Gay  v.  Adams,  1  Id.  105;  Bundy 
V.  Sabin,  2  Id.  209;  Willis  v.  Gattman, 
53  Miss.  721;  Beaumont  v.  Br?mley, 
T.  &  R.  41;  1  Sug.  V.  &  P.  262  (171). 
Such  a  mistake  can  properly  be  dealt 
with  in  equity  alone.  Long  v.  Hart- 
well,  34  N.  J.  116,  128;  Houston  v. 
Paul,  86  Ala.  232;  Knight  v.  Glass- 
cock, 51  Ark.  390;  Born  v.  Schren- 
keisen,  110  N.  Y.  55;  Scraper  Co.  v. 
Stickleman,  122  la.  396;  Wall  v. 
Meilke,  89  Minn.  232;  Wirsching  ?'. 
Grand  Lodge,  67  N.  J.  Eq.  711; 
Richmond  v.  Ogden  Ry.  Co.,  44  Oreg. 
48. 

1  Henkleman  v.  Peterson,  154  111. 
419. 

2  Pearce  v.  Buell,  22  Oreg.  29;  fol- 
lowed in  Kern  v.  Hotaling,  27  Id.  205; 
Ricker  v.  Scott,  13  So.  D.  208;  Wood- 
hurst  V.  Cramer,  29  Wash.  40;  La- 
conia  Savings  Bank  v.  Vittum,  71 
N.  H.  465;  White  v.  Stevenson,  144 
Cal.  109.  A  court  of  equity  will  not 
decree  the  correction  of  an  alleged 
mistake  in  a  voluntary  conveyance. 
Henry  r.  Henry,  215  111.  206. 

A  mistake  by  a  dealer  in  adding 


up  the  various  items  of  the  selling 
price  of  material  upon  which  he  had 
been  asked  to  furnish  an  estimate, 
does  not  justify  a  court  of  equity  in 
cancelling  a  contract  to  furnish  such 
material  based  upon  the  other  par- 
ties' acceptance  of  the  proposition  to 
furnish    the    same    for    the    amount 
represented  by  the  erroneous  total. 
"A  mistake  which  will  justify  relief 
in  equity  must  affect  the  substance 
of  the  contract,  and  not  a  mere  in- 
cident or  the  inducement  for  entering 
into   it.      The  mistake  of  the  apj  e  - 
lants  did  not  relate  to  the  subject- 
matter  of  the  contract,  its  location, 
identity,  or  amount,  and  there  was 
neither  belief  in  the  existence   of  a 
fact  which  did  not  exist,  or  ignorance 
of  any  fact  material  to  the  contract 
which  did  exist.     The  contract  was 
exactly  what  each  party  understood 
it  to  be,  and  it  expressed  what  was 
intended  by  each.     If  it  can  be  set 
aside    on    account    of    the    error    in 
adding  up  the  amounts  representing 
the  selling  price,  it  could  be  set  aside 
for  a  mistake  in  computing  the  per- 
centage of   profits  which  appellants 
intended  to  make,  or  on  account  of 
a  mistake  in  the  cost  of  the  lumber 
to  them,  or  any  other  miscalculation 
on  their  part.     If  equity  would  re- 
lieve on  account  of  such  a  mistake 
there  would  be  no  stability  in  con- 
tracts,  and    we    think    the    mistake 
was  not  of   such  a   character  as  to 
entitle     appellants      to     the     relief 
prayed."     Steinmeyer  v.  Schroeppel, 
226  111.  9. 


300 


ACCIDEXT    AND    MISTAKE. 


[part  II. 


but  which  is  founded  on  error,  the  settlement  will  be  set  aside. ^ 
The  appropi'iate  relief  in  cases  of  mistake  is  sometimes  solely  in 
('(juity,  and  no  action  at  law  will  lie.  Thus,  where  a  parcel  of  ten 
acres  was  omitted  from  a  conveyance,  either  through  mistake  or 
fi'aud,  it  was  held  that  the  purchaser  might  have  the  deed  re- 
formed or  might  reasonably  rescind  the  contract,  but  could  not 
sue  in  assuntpsit  to  recover  back  a  proportionate  part  of  the 
price.^ 

191.  Must  be  mutnal,  material,  and  not  induced  by  negli- 
gence. 

The  mistake,  to  be  relieved  against  in  equity,  must  be  one 
that  is  mutual,  material,  and  not  induced  by  negligence. '"^  It 
must  be  mutual,  if  the  complainant  wishes  to  have  the  instru- 
ment reformed  and  not  simply  set  aside,  because  equity  cannot 
undertake  to  reform  on  the  ground  of  ignorance  or  misappre- 
hension of  one  of  the  parties  as  to  any  facts,  though  it  may  re- 
scind."* It  is  essential,  as  has  been  said  by  the  Supreme  Court  of 
Michigan,  that  the  mistake  to  be  relieved  against  in  equity  must 


1  Adams  Eq.  384;  McCrae  v.  Hollis, 
4  Dess.  122;  Waggoner  i'.  Minter,  7 
J.  J.  Marsh.  175;  Barnett  v.  Bamett, 
6  Id.  499;  Monnin  v.  Beroujon,  51 
Ala.  196;  Stuart  v.  Sears,  119  Mass. 
143;  Russell  v.  The  Church,  65  Pa. 
9;  Stines  r.  Hays,  36  N.  J.  Eq.  364. 
See,  further,  as  to  mistake.  Leek  v. 
Cowley,  10  S.  &  R.  176;  Horbach  v. 
Gray,  8  Watts,  492;  Jenks  r.  Fritz,  7 
W.  &  S.  201;  Bishop  i:  Reed,  3  Id. 
261;  Worsely  v.  Burlington  Ins.  Co., 
74  la.  464. 

^  Rand  v.  Webber,  64  Me.  191.  If 
the  omission  were  occasioned  by 
fra  :d,  an  action  for  deceit  would  lie 
in  such  a  case.     Id. 

3  Cleghorn  r.  Zumwalt,  83  Cal.  155; 
Baker  v.  Pyatt,  108  Ind.  61.  See 
Paulison  v.  Van  Iderstine,  28  N.  J. 
Eq.  306,  for  an  illustration  of  the 
limitations  upon  the  doctrine  of  re- 
lief in  equity  on  the  ground  of  mis- 
take. Dougherty  r.  Dougherty,  204 
Mo.  228;  Marshall  v.  Homier,  13 
Okla.  264. 

*  Lyman    v.    United    Ins.    Co.,    17 


Johns.  377;  Nevius  v.  Dunlap,  33 
N.  Y.  676;  Christopher  Street  Ry.  Co. 
V.  Twenty-third  Street  Ry.  Co.,  149 
N.  Y.  51 ;  Cooper  v.  The  Farmers'  Ins. 
Co.,  50  Pa.  299;  Evarts  r.  Steger,  5 
Oreg.  147;  King  v.  Holbrook,  38  Oreg. 
452;  Thornton  v.  Krimbel,  28  Id.  271. 
See,  also,  Bentley  v.  Mackey,  31 
Beav.  151;  Scott  v.  Coulson  [1903], 
1  Ch.  452;  Sawyer  r.  Hovey,  3  Allen, 
331;  Quincy  v.  Chute,  156  Mass.  189; 
Woodbury  Savings  Bank  i\  The  In- 
surance Co.,  31  Conn.  517;  Diman  v. 
Providence  R.  Co.,  5  R.  I.  130;  White 
V.  C.  Nat.  Bank,  64  N.  Y.  316;  Mead 
V.  Westchester  Fire  Ins.  Co.,  Id.  453; 
Morris  v.  Penrose,  38  N.  J.  Eq.  629; 
Sells  1-.  Sells,  1  Dr.  &  Sm.  42;  Probett 
V.  Walters,  70  Mich.  437;  Ford  r. 
Daniells,  71  Id.  77;  Hartford  Ins.  Co. 
V.  Haas,  87  Ky.  531 ;  Vail  v.  Reynolds, 
51  Hun,  468;  Keister  r.  Myers,  115 
Ind.  312;  Critchfield  v.  Kline,  39 
Kan.  721;  Dod  r.  Paul,  43  N.  J.  Eq. 
302;  Travellers'  Ins.  Co.  v.  Hender- 
son, 32  U.  S.  App.  536;  Moffett,  etc., 
Co.  V.  City  of  Rochester,  33  C.  C.  A. 


II 


CH.  I.] 


ACCIDENT    AND    MISTAKE. 


301 


be  an  error  on  both  sides. ^  If,  however,  such  ignorance  or  mis- 
apprehension was  induced  or  fraucUilently  taken  advantage  of  b}^ 
the  other  party,  rehef  will  be  administered,  but  obviously  on 
different  grounds.^  Still  less  can  a  chancellor  grant  redress  in  a 
case  where  a  party  finds  that  his  motives  for  entering  into  a 
contract  were  mistaken,  or  his  expectations  unfounded.^  This 
is  especially  the  case  where  the  means  of  information  are  equally 
open  to  both  parties ;  "*  or  the  subject-matter  of  the  agreement 
is  of  a  doubtful  character.^ 

The  mistake  must  be  material,  because  the  court  will  not  in- 
terpose its  extraordinary  relief  for  slight  errors  in  matters  which 
are  not  of  importance.  As  misrepresentation  will  not  vitiate 
a  contract  unless  it  relates  to  something  which  is  a  material  in- 
ducement to  the  party  to  act,^  so  a  mistake  will  not  justify  a  man 
in  seeking  equitable  relief  if  it  is  a  mistake  relating  to  some  trivial 
matter,  which  did  not  substantially  influence  his  action.'''  It 
must  be  something  which,  if  uncorrected,  would  tend  to  work  in- 
justice.* 

A  mistake  will  not  be  relieved  against  if  it  is  the  result  of  the 


317;  Dewey  v.  Whitney,  35  C.  C.  A. 
414;  Stewart  v.  Gordon,  60  Ohio,  170; 
Hertzler  v.  Stevens,  119  Ala.  333; 
Scott  V.  Hall,  58  N.  J.  Eq.  42;  Keene 
V.  Demelman,  172  Mass.  17;  Cor- 
bettr.  Craven,  196  Mass.  319;  Wir- 
sching  V.  Grand  Lodge  67  N.  J.  Eq. 
711;  Forester  r.  Van  Auken,  12  N. 
D.  175;  Miller  r.  Stuart,  107  Md.  23. 
post,  Part  III.,  chapter  on  Refor- 
mation and   Cancellation. 

1  Ludington  v.  Ford,  33  Mich.  123; 
Balen  v.  Ins.  Co.,  67  Mich.  179;  Barth 
V.  Deuol,  11  Colo.  494;  McCusker  v. 
Spier,  72  Conn.  628;  German  Savings 
Bank  v.  Geneser,  116  la.  119.  The 
rule  that  a  mistake  to  be  susceptible 
of  correction,  must  be  mutual,  does 
not  mean  that  both  parties  must 
agree  on  the  hearing  that  the  mis- 
take was  in  fact  made,  but  that  the 
evidence  of  mutuality  in  the  mistake 
should  relate  to  the  time  of  the  ex- 
ecution of  the  instrument  and  show 
that  at  that  particular  time  the  par- 
ties intended  to  say  a  certain  thing 


and  by  mistake  of  fact  expressed 
another.  Matthews  v.  Whitethorn, 
220  111.  36. 

2  See  Welles  v.  Yates,  44  N.  Y.  525; 
Maher  v.  Hibernia  Ins.  Co.,  67  Id. 
285;  Harding  v.  Egin,  2  Tenn.  Ch.  39; 
Roszell  V.  Roszell,  109  Ind.  354;  Cook 
V.  Listen,  192  Pa.  19;  Thayer  v. 
Knote,  59  Kan.  181;  Cox  v.  Beard, 
75  Kan.  369. 

3  A  court,  however,  may,  under 
such  circumstances,  refuse  to  lend  its 
aid  to  the  other  party  seeking  specific 
performance.  Post,  Part  III.,  Chap. 
I.,  §  376;  Mays  v.  Dwight,  82  Pa.  462. 

*  See  Western  German  Savings 
Bank  v.  Farmers'  and  Drovers'  Bank, 
10  Bush,  669;  Shriver  v.  Garrison,  30 
W.  Va.  456;  Story's  Eq.  Jurisp.  §  150. 

5  Perkins  v.  Gay,  3  S.  &  R.  327. 

6  See  post,  Chap.  II. 

7  See  McFerran  v.  Taylor,  3  Cranch, 
281  (remarks  of  Ch.  J.  Marshall); 
Kerr  on  Fraud  and  Mistake,  408. 

*  Henderson  r.  Dickey,  35  Mo.  120; 
Bigham  v.  Madison,  103  Tenn.  358. 


302 


ACCIDENT    AND    MISTAKE. 


[part  II. 


party's  own  negligence/  or  that  of  his  attorney; '  or  if  it  is  oc- 
casioned by  the  forgetfulness  of  the  party  or  of  his  agent.^  Thus, 
if  he  has  had  a  complete  defence  or  remedy  at  law,  he  cannot,  if 
he  has  neglected  to  avail  himself  of  it  there,  have  any  relief  in 
equity ."^  And  under  the  same  head  should  be  classed  mistakes 
into  which  a  person  has  fallen,  because  he  has  not  made  use  of 
the  means  of  inquiry  which  were  open  to  him;  ^  as  (for  instance) 
where  he  has  not  taken  the  trouble  to  read  the  paper  which  he 
was  executing. "^  Reasonable  diligence,  however,  is  all  that  is  re- 
quired, and  a  party  will  not  be  deprived  of  his  right  to  equitable 
relief  simply  because  he  has  not  exercised  the  highest  possible 
degree  of  care.'^  Moreover,  even  negligence  may  not,  in  all  cases, 
close  the  doors  of  chancery  against  a  complainant ;  for  if  the  posi- 
tion of  the  other  party  has  not  been  changed  in  consequence 
thereof,  relief  may  be  granted.* 

There  can  be  no  relief  on  the  groimd  of  mistake  when  the 
subject-matter  of  the  contract  is  necessarily,  and  by  its  very 
nature,  of  a  doubtful  or  uncertain  kind." 


1  Duke  of  Beaufort  v.  Neeld,  12  CI. 
>;-  Finn.  248,  286;  Leuty  r.  Ilillas,  2 
De  G.  &  J.  110;  Susquehanna  Mut. 
.'ire  Ins.  Co.  v.  Swank,  102  Pa.  17; 
Western  R.  Co.  r.  Babcock,  6  Met. 
;>i6;  Person  r.  Sanger,  1  Wood  &  Min. 
138;  Wood  v.  Patterson,  4  Md.  Ch. 
o35;  Diman  v.  Providence  R.  Co.,  5 
R.  I.  130;  Haggerty  v.  McCanna,  25 
.\.  J.  Eq.  48;  Dillett  v.  Kemble,  Id. 
66;  Voorhis  v.  Murphy,  26  Id.  434; 
Heath  v.  Jones,  12  111.  App.  493; 
Lamb  v.  Harris,  8  Ga.  546;  Iverson 
?'.  Willburn,  65  Id.  103;  Smith  v. 
Wheeler,  58  la.  659;  Lewis  v.  Lewis,  5 
Ores.  169;  Ellison  v.  Fox,  38  Minn. 
454;  Shrivcr  r.  (larrison,  30  W.  Va. 
456;  Woodside  r.  Lippold,  113  Ga. 
877;  Keith  v.  Brewster,  114  Id.  176; 
Grieve  v.  Grieve,  15  Wyo.  358. 

2  Heath  r.  Jones,  12  111.  App.  493. 

3  Barrow  v.  Isaacs  [1891],  1  Q.  B. 
417;  and  see  the  remarks  of  Esher, 
M.  R.,  on  p.  420,  and  of  Kay,  L.  J., 
on  p. 427. 

*  Stephenson  v.  Wilson,  2  Vern. 
325. 


5  See  Kerr  on  Fraud  and  Mistake, 
407;  Hill  v.  Bush,  19  Ark.  522;  Penny 
r.  Martin,  4  Jones  Ch.  566;  Butman  v. 
Ilussey,  30  Me.  263;  Juzan  v.  Toul- 
min,  9  Ala.  662. 

8  Greenfield's  Estate,  14  Pa.  489; 
Penna.  R.  Co.  v.  Shay,  82  Id.  198; 
Glenn  v.  Statler,  42  la.  110;  Roundy 
V.  Kent,  75  Id.  662;  Miller  v.  Powers, 
119  Ind.  79;  Jossey  v.  Ga.  Southern 
Ry.  Co.,  109  Ga.  439;  Walton  Guano 
Co.  V.  Copelan,  112  Ga.  319;  Snel- 
grove  V.  Earl,  17  Utah,  321;  Kelly  v. 
Ward,  94  Tex.  289;  Ferrell  v.  Ferrell, 
53  W.  Va.  515. 

7  Snyder  r.  Ives,  42  la.  162;  Mc- 
Kibben  v.  Doyle,  173  Pa.  579;  Werner 
V.  Rawson,  89  Ga.  619. 

8  Mayer  v.  The  Mayor  of  New 
York,  63  N.  Y.  455;  Onondaga 
County  Savings  Bank  v.  United 
States,  26  U.  S.  App.  377;  Eberle  r. 
Heaton.  124  Mich.  205;  Hoops  ?'. 
Fitzgerald,  204  111.  325. 

»  Mortimer  v.  Capper,  1  Bro.  C.  C. 
156;  Ridgway  v.  Sneyd,  Kay,  627; 
Baxendale  v.  Seale,    19   Beav.   601; 


4 


A 


CH.  I.]  ACCIDENT   AND   MISTAKE,  303 

Nor  will  equity  always  relieve  if  a  mistake  has  occurred  in  a 
family  arrangement,  designed  to  settle  disputes  and  quiet  titles. 
A  family  compromise,  even  if  made  under  mistaken  impressions 
as  to  facts,  will  not,  generally,  be  disturbed.  It  is  otherwise 
with  compromises  between  strangers;  for  these,  if  based  upon  a 
mistake  of  fact,  will  be  set  aside. ^ 

192.  Defective  execution  of  powers. 

The  occasions  which  call  for  the  interposition  of  equity  on  the 
ground  of  mistake  are,  of  course,  very  numerous,  and  it  would 
not  be  possible,  even  if  it  were  desirable,  to  enumerate  them  all 
without,  in  fact,  giving  a  digest  of  the  reported  decisions  under 
this  head.  There  is,  however,  one  class  of  cases  in  which  the 
equitable  doctrine  is  of  an  anomalous  character  and  requires  par- 
ticular notice,  and  that  is  the  defective  execution  of  powers. 
This  subject  was  referred  to  under  the  head  of  "Accident;" 
and  it  is  well  established  that  in  the  case  of  mistake,  as  well  as  in 
that  of  accident,  equity  will  relieve  against  certain  defects  in  the 
execution  of  a  power  in  favor  of  certain  persons  and  as  against 
others,  if  these  latter  do  not  stand  in  an  equally  meritorious  posi- 
tion. It  will  be  observed  that  the  above  statement  naturally 
suggests  the  questions — first,  what  defects  may  be  remedied; 
second,  for  whose  benefit;  and  third,  as  against  whom? 

193.  Wliat  defects  may  be  remedied. 

And,  first,  what  defects  may  be  remedied?  Equity  will  not 
interfere  in  the  case  of  a  non-execution  of  a  power.  It  will  correct 
defects  in  an  attempted  execution ;  but  it  will  not  supply  an  exe- 
cution if  none  has  been  attempted.^  The  reason  for  the  distinc- 
tion is  obvious.  The  jurisdiction  which  equity  has  assumed  to 
aid  in  the  defective  execution  of  powers  is  based  upon  the  theory 
that  the  donee  of  the  power  has  intended  to  exercise  it,  but  has 
been  prevented  from  doing  so  by  some  accident  or  mistake ;  ^ 
and  equity  will  not,  in  such  a  case,  suffer  a  substantial  intention 
to  be  defeated  for  the  sake  of  a  mere  form.    But  where  there  has 

Kowalke  v.  Milwaukee  Electric,  etc.,  259;  Wilkinson  v.  Getty,  13  la.  157; 

Co.,  103  Wis.  472;  H.  &  T.  C.  Ry.  See  Norcum  v.  D'CEnch,  17  Mo.  98; 

Co.  V.  McCarty,  94  Tex.  298.  Brown    v.    Phillips,    16    R.    I.    612; 

1  Stockley  v.  Stockley,  1  V.  &  B.  note  to  Toilet  v.  Toilet,  1  Lead.  Cas. 
23;  Kerr  on  Fraud  and  Mistake,  434.  Eq.    381    (4th    Am.    ed.);    Sayer    v. 

2  Johnson    v.    Cushing,    15    N.    H.  Humphrey,  216  111.  426. 

298;  Howard   v.  Carpenter,   11   Md.  3  Barr  v.  Hatch,  3  Ohio,  527. 


304 


ACCIDENT   AND   MISTAKE. 


[part  II. 


hcoM  no  exercise  of  the  power  at  all,  no  intention  to  exercise  it 
can  be  pi-esunied;  and,  th(^rcfore,  the  ground  for  the  interference 
of  the  chancellor  does  not  exist. 

The  defects  which  will  be  aided  in  equity  are  of  two  kinds- 
first,  where  there  has  been  an  instrument  executed  from  which 
an  intention  to  exercise  the  power  may  be  inferred,  but  the  in- 
stnunent  itself  is  informal  or  inapj)ropriate ;  ^  and,  second,  where 
there  has  been  a  defective  execution  of  a  formal  and  appropriate 
instrument. 

Of  the  first  class  of  defects  the  leading  case  of  Toilet  v.  Toilet 
is  an  illustration.  There,  a  power  existed  to  make  a  jointure  by 
deed.  It  was,  in  fact,  made  by  will.  It  was,  nevertheless,  held 
that  this  exercise  of  the  powTr  was  good.-  So  equity  will  lend  its 
aid  in  many  other  cases  in  which  the  instrument  is  inappropriate, 
provided,  always,  there  is  a  sufficient  indication  of  the  intention 
to  exercise  the  power.^ 

Of  the  second  class  of  defects  which  will  be  aided  in  equity, 
familiar  instances  are  found  in  those  cases  in  which  the  instru- 
i;  cut  by  which  the  power  is  to  be  exercised  is  required  to  be  exe- 
(i;ted  in  the  presence  of  a  certain  number  of  witnesses,  and  is 
r  tually  executed  in  the  presence  of  a  smaller  number;  or  in 
\v!.ih  it  is  recjuired  to  be  signed  and  sealed,  and  sealing  is 
ouiitted.''  The  rule  will  apply  to  any  case  in  which  there  is  an 
ai)proi)riate  instrument,  but  in  the  execution  of  which  there  has 
been,  through  accident  or  mistake,  some  informality. 


1  See  In  re  Dykes'  Estate,  L.  R.  7 
Eq.  337;  note  to  Toilet  v.  Toilet,  1 
Lead.  Cas.  Eq.  234  (4th  Eng.  ed.). 

'^  While  a  power  of  appointment  by 
deed  is  well  exerci.sed  by  will,  the 
converse  is  not  the  case,  and  a  power 
to  appoint  by  will  cannot  be  exer- 
cis(Ml  by  deed.  The  reason  of  this  is 
that  the  donor  of  the  power,  in  the 
latter  case,  is  supposed  to  intend  that 
the  power  shall  be  ambulatory  during 
the  life  of  the  donee  of  the  power,  and 
that  as  this  intention  would  be  de- 
feated by  the  execution  of  a  deed,  the 
power  mu.st  be  strictly  punsued.  and 
can  be  exerci.sed  only  by  will. 

"  Garth  v.  Townsend,  L.  R.  7  Eq. 
220. 


<  See  Morse  r.  Martin,  34  Beav. 
500;  note  to  Toilet  v.  Toilet,  1  Lead. 
Cas.  Eq.  234  (365,  4th  Am.  ed.). 

.\t  common  law  a  power  or  au- 
thority was  not  considered  executed 
unless  by  some  reference  to  the  power 
or  authority,  or  to  the  property 
which  was  the  subject  of  it,  or  un- 
less the  provision  made  by  the  person 
intrusted  with  the  power  would  have 
had  nothing  to  operate  upon  except 
it  were  considered  as  an  execution  of 
such  power  or  authority.  In  many 
states  the  common-law  rule  has  been 
altered  by  statute,  but  when  not  so 
altered  the  common-law  rule  appears 
to  be  in  force.  Lane  i".  Lane's  Adm'  . 
i  Pennewill,  368  (Del.). 


1 


CH.  I.] 


ACCIDENT    AND    MISTAKE. 


305 


191.  For  whose  benefit. 

In  the  second  place,  in  considering  the  question,  "for  whose 
benefit  will  equity  lend  its  aid?"  it  may  be  stated,  as  a  generol 
rule,  that  mere  volunteei's  will  not  be  assisted,  but  that  aid  will 
be  given  to  purchasers  for  value,  mortgagees,  lessees  ^  (for  mort- 
gagees and  lessees  are  purchasers  pro  tanto),  creditors,^  and 
{persons  who  have  a  meritorious  standing/''  In  this  last  class  are 
included  a  charity,'*  a  wife  and  a  legitimate  child,  but  none 
others.^  Thus,  the  execution  of  a  power  will  not  be  aided  in 
favor  of  a  husband,^  an  illegitimate  child,  a  grandchild,  a  father, 
a  mother,  brother  or  sister,  a  nephew  or  niece,  a  cousin,  or  a 
settlor  defectively  executing  a  power  in  his  own  favor 7  In 
some  rare  cases,  however,  equity  will  lend  its  aid  even  in  favor  of 
a  volunteer;  as,  for  instance,  when  the  due  execution  of  a  power 
has  become  impossible.* 

195.  Against  whom. 

In  the  third  place,  equity  will  aid  the  defective  execution  of  a 
power  against  a  remainderman,  and  also,  in  general,  against  the 
heir-at-law.  Whether  it  will  be  aided  as  against  an  heir-at-law 
who  is  unprovided  for  seems  to  be  still  undecided.^  It  will  not 
be  aided  against  a  bona  fide  pui-chaser  for  value ;  ^^  and  this,  in- 
deed, is  the  general  iiile  as  to  mistakes." 

Equity  will  not  lend  its  aid  if  the  intention  of  the  donor  of 
the  power  will  thereby  be  defeated.  This  is  the  reason  why  a 
power  required  to  be  exercised  by  will  cannot  be  duly  exercised 
by  deed.^^ 


1  Thorp  V.  McCullum,  1  Gilm.  615; 
Beatty  v.  Clark,  20  Cal.  11;  Love  v. 
The  Sierra  Nevada  Mining  Co.,  32  Id. 
653;  Affleck  r.  Affleck,  3  Sm.  &  Giff. 
394;  In  re  Dykes'  Estate,  L.  R.  7 
Eq.  337;  Taylor  v.  Wheeler,  2  Vern. 
564;  .Jennings  v.  Moore,  Id.  609; 
Campbell  r.  Leach,  Ambl.  740;  Shan- 
non v.  Bradstreet,  1  Sch.  &  Lef.  62; 
Dowell  V.  Dew,  1  Y.  &  C.  Ch.  345; 
King  r.  Roney,  5  Ir.  Ch.  64.  See, 
also,  Hout  V.  Hout,  20  Ohio  St.  119. 

2  Bixhy  r.  Eley,  2  Bro.  C.  C.  325; 
Wilkes  )'.  Holmes,  9  Mod.  485. 

3  1  Lead.  Cas.  Eq.  229  (4th  Eng. 
ed.) ;  note  to  Toilet  v.  Toilet;  Schenck 
V.  Ellingood,  3  Edw.  Ch.  175. 

20 


<  Pepper's  Will,  1  Pars.  Eq.  436, 
446,  451. 

5  See  Porter  v.  Turner,  3  S.  &  R. 
114;  Dennison  v.  Goehring,  7  Pa.  175. 

6  Breit  v.  Yeaton,  101  111.  242. 

7  1  Lead.  Cas.  Eq.  231,  232.  See, 
however,  Huss  ?'.  Morris,  63  Pa.  367. 

8  Kerr  on  Fraud  and  Mistake,  444. 

9  1  Lead.  Cas.  Eq.  233. 

I*'  Kerr  on  Fraud  and  Mistake,  443. 

11  American  Mfg.  Co.  i\  O'Hara,  15 
U.  S.  App.  79.  See,  however,  Rogers 
V.  Castle,  51  Minn.  428,  and  Fort 
Smith  Milling  Co.  v.  Mikles,  61  Ark. 
123. 

12  Kerr  on  Fraud  and  Mistake, 
442. 


306  ACCIDENT    AND    MISTAKE.  [PART  II. 

The  equity  under  consideration  will,  it  seems,  be  only  exer- 
cised in  favor  of  the  intention  of  the  donee  of  the  power  after  his 
death.  It  will  not  be  exercised  in  support  of  a  conveyance  inter 
vivos — except  in  the  case  of  a  purchaser  for  value.  This  seems 
to  follow  from  the  rule  in  regard  to  supplying  surrenders  of  copy- 
holds, which  stands  precisely  on  the  same  footing  as  the  equity 
in  regard  to  aiding  defective  execution  of  powers,  and  is  gov- 
erned by  the  same  rules. ^ 

As  to  the  question  of  what  powers  will  be  aided,  it  may  be 
sufficient  to  remark  generally  that  they  are  those  created  by 
way  of  use  as  distinguished  from  bare  authorities  conferred  by 
law.  Acts  done  under  authorities  of  this  latter  kind — as,  for 
example,  leases  or  conveyances  by  a  tenant  in  tail — are  only 
binding  when  regular  and  complete.^ 

While  it  is  true,  as  a  rule,  that  equity  will  not  supply  the  non- 
execution  of  a  power,  it  must  be  remembered  that  this  will  not 
apply  to  that  particular  class  of  powers  (which  have  been  already 
discussed)  known  as  powers  in  trust.  The  exercise  of  such 
powers  is  obligatory;  and,  as  has  been  explained  in  a  former 
chapter,  the  non-execution  by  the  donee  is  never  allowed  to  de- 
feat the  intention  of  the  settlor,  or  disappoint  the  beneficiaries 
for  whose  advantage  the  powers  were  created. 

196.  Miscellaneous  cases. 

Equity  has  jurisdiction  to  correct  mistakes  in  awards,  where 
the  mistake  appears  on  the  face  of  the  award,  or  is  disclosed  by 
some  contemporaneous  writing,  or  if  the  arbitrator  voluntarily 
admits  a  mistake,  or  states  circumstances  which  show  clearly 
that  the  proceedings  have  been  erroneous ;  but  not  otherwise.^ 

Equity  has  jurisdiction  to  correct  mistakes  in  wills  when  they 
are  apparent  on  the  face  of  the  will,  or  are  made  out  by  a  due 
construction  of  its  terms.'* 

Thus  in  Home  for  Incurables  v.  Noble,  there  was  a  "bequest" 
by  will  to  the  Hospital  of  the  University  of  Pennsylvania  of  five 
thousand  dollars,  and  a  "devise  and  bequest"  of  the  residuary 
estate  to  the  Home  for  Incurables — both  provisions  being  for  the 

'The  jurisdiction   to   supply  sur-  '  Id.  447,  448;  Roosevelt  v.  Thur- 

renders  of  copyholds  is  no  longer  of  man,  1  Johns.  Ch.  225. 

importance.    The  cases  upon  the  sub-  *  Id.    448;    1    Story's   Eq.    Jurisp. 

ject,  are,  however,  applicable  to  the  §§  179,   18-3.     See  Mellish  v.  MelHsh, 

subject  of  powers.  4  Ves.  45;  Grimes  v.  Harmon,  35  Ind. 

2  Kerr  on  Fraud  and  Mistake,  331.  208;  Davis  v.  Henry,  121  Mass.  150. 


CH.  I.] 


ACCIDENT   AND   MISTAKE. 


307 


purpose  of  establishing  beds  in  hospitals  in  memory  of  the  son 
of  the  testatrix.  By  a  codicil  the  "bequest"  of  "five  thousand 
dollars"  to  the  "Home  for  Incurables"  was  revoked;  and  the 
"five  thousand  dollars  heretofore  in  my  said  will  becjueathed  to 
the  Home  for  Incurables"  was  given  and  beciueathed  to  one  E. 
C.  It  was  held  that  the  description  of  the  subject-matter  of  the 
bequest  to  E.  C.  was  controlling,  and  that  the  intention  of  the 
testatrix  was  to  take  that  particular  bec[uest  from  the  hospital 
of  the  University,  and  that  the  name  of  the  Home  for  Incurables 
had  been  used  by  mistake.^ 

Equity  will  not  grant  relief  in  cases  of  mistake  except  upon 
very  clear  evidence.^  Where  it  is  admitted  in  the  answer,  there 
can,  of  course,  be  Httle  difficulty  in  granting  relief;  but  where 
the  fact  of  mistake  is  denied  in  the  answer,  evidence  to  over- 
come such  denial  must  be  of  the  most  persuasive  character.^ 
Nor  will  equity  relieve,  where  the  parties  cannot  be  restored  to 
their  original  status.^ 

In  fine,  relief  will  only  be  granted  subject  to  the  general  con- 
siderations applicable  to  the  equitable  remedies  of  Cancellation 
and  Reformation.^ 


1  Home   for   Incurables   v.   Noble, 
172  U.  S.  384. 

2Ridgway's  Account,  206  Pa.  590; 
Stoll  V.  Nagle,  15  Wyo.  86. 

3  Kennard  v.  George,  44  N.  H.  440 
Canedy    v.    Marcy,     13    Gray,    373 
Beardsley    v.    Knight,    10    Vt.    185 
Tripp  V.  Hasceig,  20  Mich.  263;  Case 
V.  Peters,  Id.  298;  Burgin  v.  Giberson, 
2i  N.  J.  Eq.  77;  Ludington  v.  Ford, 
33  Mich.  123;  Burns  v.  Caskey,  100 


Id.  94;  Getman's  Ex'rs  v.  Beardsley,  2 
Johns.  Ch.  274;  L\Tnan  v.  United 
Ins.  Co.,  17  Johns.  377;  Lewis  v. 
Lewis,  5  Or.  169;  Hamlin  r.  Sulli- 
vant,  11  111.  App.  423. 

4  Du  Bois  Boro.  v.  Waterworks,  176 
Pa.  430. 

5  Id.  And  see  the  remarks  of 
Mitchell,  J.,  on  pp.  436  et  seq.  See 
post,  chapter  on  Re-execution  and 
Cancellation. 


308 


FRAUD. 


[part  II. 


CHAPTER  II. 


FRAUD. 


SECTION  I. 


GENERAL   NATURE   OF    FRAUD;   ACTUAL   FRAUD. 


197.  Importance  and  general  nature 

of  equitable  jurisdiction  in 
cases  of  Fraud. 

198.  Di.stinctions  between  the  relief 

at  law  and  in  equity. 

199.  Limitations   upon   the  jurisdic- 

tion of  equity  in  cases  of 
Fraud;  Fraud  in  obtaining  a 
will;  Allen  v.  M'Pherson. 

200.  Concurrent   jurisdiction    of    eq- 

uity. 

201.  Exclusive  jurisdiction. 

202.  Fraudulent    transactions    void- 

able, not  absolutely  void. 

203.  ^Nithin  what  time  redress  must 

be  sought. 

204.  Fraudulent    transactions    must 

be  adopted  or  set  aside  in  Into. 

205.  General  division  of  the  subject 

of  Fraud. 

206.  General  nature  of  actual  fraud. 

207.  Matters  of  opinion. 


208.  Prospectuses  of  projected  com- 

panies; Central  Railway  Co.  v. 
Kisch. 

209.  Puffing;  Mortimer  v.  Bell. 

210.  Fraud  on  owner  of  property  sold 

at  auction. 

211.  Matters  of  intention. 

212.  Matters  of  law. 

213.  Suppressio  vert. 

214.  Knowledge  of  the  truth  or  false- 

hood by  party  making  the 
representations ;  classification 
of  cases  on  this  subject. 

215.  Representation  must  be   relied 

on. 

216.  Representation  must  be  mate- 

rial; doltts  dans  locum  con- 
tractu i. 

217.  Partj'  deceived  must  be  injured; 

representations  by  agents. 

218.  Trustees  ex  maleficio. 


197.  Iinportaiice  and  general  nature  of  equitable  jurisdic- 
tion in  cases  of  Fraud. 

The  subjoet  of  the  present  chapter  is  that  head  of  jurisdic- 
tion which,  perhaps,  more  than  any  other  in  the  whole  range 
of  the  jurisprudence  of  chancery,  has  called  forth  the  beneficial 
exercise  of  the  powers  of  courts  of  equity.  From  the  earliest 
times  down  to  the  present  day,  the  wrongs  inflicted  by  covin  (to 
use  the  ancient  term)  have  appealed  with  peculiar  force  to  the 


If 


CH.  II.]  FRAUD.  309 

conscience  of  chancellors;  and  probably  no  field  of  remedial  law 
has  more  extended  boundaries,  or  has  yielded  more  substantial 
fruits  of  justice,  than  that  which,  in  equity  jurisprudence,  is 
embraced  under  the  title  of  Fraud. 

While  the  general  signification  of  this  word  (fraud)  is  easily 
understood,  and,  indeed,  recjuires  no  explanation,  it  is,  never- 
theless, difficult  to  give  any  satisfactory  definition  of  it  in  a 
single  sentence,  for  the  simple  reason  that  the  courts  of  etjuity 
have  always  avoided  circumscribing  the  area  of  their  jurisdiction 
in  such  cases  by  precise  boundaries,  lest  some  new  artifice,  not 
thought  of  before,  might  enable  a  wrongdoer  to  escape  from 
the  power  of  equitable  redress.  "The  court,"  said  Lord  Chan- 
cellor Hardwickt  in  Lawley  v.  Hooper,^  decided  in  1745,  "very 
wisely  hath  never  laid  down  any  general  rule  beyond  which  it 
will  not  go,  least  other  means  for  avoiding  the  equity  of  the 
court  should  be  found  out." 

198.  Distinctions  between  the  relief  at  law  and  in  equity. 

Fraud  in  equity  has  a  wider  signification  than  it  has  at  law. 
It  is  true  that,  at  common  law,  fraud  is  said  to  vitiate  all  transac- 
tions, rendering  not  only  contracts,  but  even  the  most  solenm 
acts,  as,  for  example,  the  judgments  of  the  courts,  liable  to  be 
avoided.'  Hence  there  exist  many  remedies  at  law  for  the  pur- 
pose of  redressing  injuries  inflicted  through  fraud.''  Such  is  the 
action  of  deceit ;  the  action  on  the  case  for  fraudulent  misrepre- 
sentations; and  all  actions  based  on  the  theory  of  the  rescission 
of  contracts  on  the  ground  of  fraud,  such  as  suits  to  recover 
purchase-money  paid,  or  to  get  back  goods  delivered.  In  many 
instances,  a  party  to  a  transaction  tainted  by  fraud  may  elect  to 
rescind  it,  and  recover,  at  law,  anything  of  value  with  which  he 
may  have  parted  on  the  faith  of  it.    A  familiar  illustration  of  the 

lAtkyns,  278.  374;  Stark  v.  McGowen,  1  Nott  & 
2  See  Kincaid  v.  Conly,  Phil.  Eq.  McC.  397,  note;  Derby  Turnpike  Co. 
270;  Grantham  v.  Kennedy,  91  N.  C.  v.  Parks,  10  Conn.  539.  Consult 
148;  Riegel  v.  Wood,  1  Johns.  Ch.  Rand  v.  Webber,  64  Me.  191. 
402.  But  the  fraud  must  be  actual,  3  The  acknowledgment  of  a  mar- 
not  merely  constructive.  Patch  ??.  ried  woman  to  a  deed  may  be  avoided 
Ward,  L.  R.  3  Ch.  207.  A  private  by  proof  of  a  fraud  or  duress;  Mc- 
statute  may  be  relieved  against  when  Candless  v.  Engle,  51  Pa.  313,  and 
obtained  on  "false  suggestions,"  2  cases  cited;  except  as  against  a  bona 
Black.  Com.  346;  but  not  "a  public  fide  purchaser  without  notice.  Hall 
act."  See  Tyson  v.  School  Directors,  v.  Patterson,  Id.  289. 
51  Pa.  14;  Beegle  v.  Wentz,  55  Id. 


310 


FRAUD. 


[part  II. 


right  to  bring  a  common-law  action  for  fraudulent  representation 
is  furnished  by  the  action  brought  for  falsely  representing  a  third 
party  to  be  solvent,  and  thereby  inducing  the  plaintiff  to  trust  his 
money  or  his  goods  with  the  party  as  to  whose  solvency  he  is  thus 
deceived  by  the  defendant.^  The  defendant,  in  such  a  case,  can 
be  held  responsible  in  a  conmion-law  action.  Actions  based  on 
the  rescission  of  contracts  are  also  of  very  frequent  occurrence ;  as, 
for  example,  where  a  vendor  delivers  goods  which  are  different  in 
kind  from  those  which  he  contracted  to  deliver,  the  purchaser 
may  return  the  goods  and  recover  the  purchase-money  in  an  ac- 
tion for  money  had  and  received.^ 

Common-law  actions,  however,  do  not  touch  every  imaginable 
description  of  fraud,  and  the  relief  which  they  afford  is,  in  many 
cases,  entirely  inadequate;  whereas  equity  takes  cognizance  of 
every  possible  kind  of  fraud, ^  even  where  the  guilty  party  might 
be  supposed  to  be  protected  by  a  disability,  such  as  coverture,'* 
and  its  remedies  are  of  the  most  complete  and  searching  char- 
acter. 

Thus,  equity  will  enjoin  a  party  from  enforcing  an  executory 
agreement;  or  it  will  order  an  executed  agreement  to  be  re- 
scinded ;  ^  and  in  each  of  these  cases  the  evidence  of  the  agree- 
ments may  be  ordered  to  be  delivered  up  to  be  cancelled.^  Or, 
if  the  surrender  of  a  valuable  right  has  been  procured  by  fraud, 
and  the  document  which  is  the  evidence  of  that  right  has  been 
cancelled,  equity  will  declare  the  existence  of  the  right  and  re- 


1  Pasley  v.  Freeman,  2  Smith's 
Lead.  Cas.  92.  See  1  Spence  Eq. 
622.  Actions  of  deceit  and  for  false 
representations  are  in  the  nature  of 
equitable  actions.  Gwinther  v.  Gerd- 
ing,  3  Head,  ?A)\.  If  a  deed  is  falsely 
read  to  an  illiterate  person,  it  will  be 
avoided  at  law.  Sibley  v.  Holcomb, 
104  Ky.  670;  Bigelow  on  Fraud,  326. 

2  See  notes  to  Chandelor  v.  Lopus,  1 
Sm.  Lead.  Cas.  299.  See,  also,  Farris 
V.  Ware,  60  Me.  484. 

^  Except  in  cases  of  fraud  in  ob- 
taining a  will,  where  the  common- 
law  courts  have  jurisdiction,  if  the 
subject-matter  is  realty,  and  the 
ecclesiastical  courts,  if  it  is  person- 
alty. See  Kerr  on  PVaud  and  Mis- 
take,   44     (Bump's    ed.);    Allen    v. 


M'Pherson,  1  H.  L.  Cas.  101,  -post, 
page  312  et  seq.  It  must  be  remem- 
bered, also,  that  equity  has  no  cogni- 
zance of  frauds  as  crimes;  it  looks  at 
them  only  in  a  civil  point  of  view. 
Goldsmith's  Doct.  of  Equity,  109. 

*  See  Vaughan  v.  Vanderstegen,  2 
Drew.  379;  Harvey's  Estate  (God- 
frey V.  Harben),  13  Ch.  D.  216; 
Hodgson  V.  Williamson,  15  Id.  S9; 
Schmitheimer  v.  Eiseman,  7  Bush, 
299. 

5  Baltimore  Sugar  Ref.  Co.  v. 
Campbell,  83  Md.  36. 

6  See  Relf  v.  Eberly,  23  la.  467; 
Jones  V.  Bolles,  9  Wall.  369;  John 
Hancock  Ins.  Co.  v.  Dick,  114  Mich. 
337;  Fred  Macey  Co.  v.  Macey,  143 
Mich.  138. 


i 


CH.  II.] 


FRAUD. 


311 


establish  the  document.^  Moreover,  equity,  in  proper  eases, 
may  compel  a  party  to  make  good  his  representations,'  or  it 
may  follow  the  proceeds  of  property  fraudulently  obtained  and 
sold,^  or  may  order  a  security  which  has  been  taken  in  too  large 
an  amount  to  stand  good  for  what  is  actually  due  thei'eon ;  ^  or, 
in  rescinding  a  contract,  it  may  make  allowances  for  improve- 
ments or  deteriorations;  or  it  may  order  bonds  of  indenmity  to 
be  given  by  either  party;  or  it  may  hold  that  a  transaction  is 
good  in  part  and  voidable  because  fraudident  as  to  the  residue.^ 
Equity  aims,  in  fact,  at  that  kind  of  relief  which  was  known  in 
the  Roman  law  as  restitutio  in  intergum.^ 

Moreover,  in  cases  of  this  character  the  general  principle  is 
that  he  who  seeks  equity  nmst  do  equity;  and  the  party  against 
whom  the  relief  is  sought  must,  therefore,  also  be  remitted  to 
the  position  he  occupied  prior  to  the  transaction  complained  of. 
The  court  proceeds  on  the  principle  that  as  the  transaction  ought 
never  to  have  taken  place  the  parties  are  to  be  placed,  as  far  as 
possible,  in  the  situation  in  which  they  would  have  stood  if 
there  had  never  been  any  such  transaction  7  And  where  the 
fraudulent  conduct  of  the  defendant  has  been  of  such  a  charac- 
ter as  to  put  it  out  of  the  power  of  the  court  to  restore  the 
status  quo,  the  court  will  nevertheless  give  the  plaintiff  such 
equitable  relief  as,  under  the  circumstances,  it  is  able  to  award 
him.*  Besides,  whenever  the  legal  title  is  obtained  by  fraud, 
equity  will  not  allow  the  fraudulent  party  to  hold  the  beneficial 
interest,  but  will  consider  him  as  a  trustee  for  the  injured  party. 


1  Tabor  v.  Mich.  Mut.  Life  Ins.  Co., 
44  Mich.  324. 

2  "  He  who  sells  property  on  a  de- 
scription given  by  himself  is  bound  to 
make  good  that  description."  Mar- 
shall, C.  J.,  in  McFerran  i'.  Taylor,  '.i 
Cranch,  270;  and  see  McCall  v.  Davis, 
56  Pa.  435;  Pearson  v.  Morgan,  2  Bro. 
Ch.  385;  Bacon  v.  Bronson,  7  Johns. 
Ch.  194;  Evans  v.  Bicknell,  6  Ves. 
174;  Story's  Eq.  Jur.  §  193. 

3  American  Sugar  Refining  Co.  v. 
Fancher,  145  N.  Y.  552. 

*  Neilson  v.  McDonald,  6  Johns.  Ch. 
210;  Potter  v.  Gracie,  58  Ala.  308; 
Proof  V.  Hines,  Cas.  temp.  Talb.  Ill; 
Gould  V.  Okeden,  4  Bro.  P.  C.  198. 
See  Logue's  Appeal,  104  Pa.  1.36. 


5  Bigelow  V.  Wilson,  87  Iowa,  628. 

6  1  Spence  Eq.  622. 

7  Bellamy  v.  Sabine,  2  Phil.  Eq. 
425;  Savery  v.  King,  5  H.  L.  Cas.  627; 
W.  B.  of  Scotland  v.  Addie,  L.  R.  1 
Sc.  App.  Cas.  162;  Gatling  v.  Newell, 
9  Ind.  572;  Johnson  v.  Jones,  13  Sm. 
&  M.  580;  Neblett  v.  MacFarland,  92 
U.  S.  103;  Kerr  on  Fraud,  335,  .343. 
See,  also,  Grymes  v.  Sanders,  93  U.  S. 
62;  Gould  v.  Cayuga  Nat.  Bank,  99 
N.  Y.  333;  Brown  v.  Norman,  65 
Miss.  .369;  Neal  v.  Reynolds,  .38  Kan. 
4.32;  State  v.  Williams,  .39  Id.  517; 
Rigdon  V.  Walcott  (111.),  31  N.  E. 
Rep.  158. 

8  Paquin  v.  Milliken,  163  Mo.  79; 
Green  v.  Duvergey,  146  Cal.  389. 


312 


FRAUD. 


[part  II. 


This  is  one  of  the  most  usual  means  which  equity  adopts  for 
the  purpose  of  correcting  fraud;  so  much  so,  indeed,  that  in 
certain  cases  of  fraud  the  injured  party  is  treated  as  having  an 
equitable  eatate  in  the  property  of  which  he  has  been  defrauded. 
Thus,  where  a  conveyance  was  made  by  a  chent  to  his  sohcitor, 
and  the  former  had  a  right  in  ecjuity  to  set  the  transaction  aside, 
it  was  held  that  this  was  not  a  mere  right,  but  an  estate  which  was 
devisable.^ 

In  all  these  cases,  the  remedies  afforded  by  equity  are  mani- 
festly superior  to  those  of  the  common  law,  and  are,  indeed,  of 
such  a  character  as  would  be  impossible  to  be  reached  through 
the  medium  of  common-law  forms. 

When  to  these  remedies  we  add  the  engine  of  discovery,  the 
power  of  reaching  the  defendant's  conscience,  and  getting  at 
fraudulent  intentions,  in  their  most  secret  hiding-places,  we  can 
see  how  much  superior  the  redress  afforded  in  chancery  must  be 
to  that  given  by  a  purely  common-law  tribunal. 

The  methods  of  relief  in  chancery  will  be  considered  in  that 
portion  of  this  Treatise  which  is  devoted  to  equitable  remedies. 
What  we  are  now  concerned  with  is  the  extent  and  nature  of 
the  jurisdiction  which  equity  assumes  in  such  cases. 


199.  Limitations  upon  the  jurisdiction  of  equity  in  cases 
of  Fraud  ;  Fraud  in  ol)taining  a  will ;  Allen  v.  .)/  'Pherson. 

It  was  stated  above  that  equity  takes  cognizance  of  every 
possible  kind  of  fraud.  .  This  general  remark  must  be  subject 
to  two  qualifications.  In  the  first  place,  it  is  now  settled  that 
equity  has  no  jurisdiction  in  cases  of  fraud  used  in  obtaining  a 
will.  So  far  as  the  will  concerns  real  estate,  its  validity  must  be 
tested  in  the  connnon-law  courts;  so  far  as  personalty  is  in- 
volved, courts  of  probate  have  jurisdiction.-    The  question  was 


1  See  Gresley  v.  Mousley,  4  De  G. 
&  J.  7S;  Stump  v.  Gaby,  2  De  G.,  M. 
&  G.  623. 

2  There  are  one  or  two  early  au- 
thorities the  other  way.  See  Maundy 
V.  Maundy,  1  Ch.  R.  66;  Goss  v. 
Tracy,  1  P.  Wms.  287;  Welby  v. 
Thornagh,  Pr.  Ch.  123,  and  see  Smith 
V.  Boyd,  127  Mich.  417.  But  the 
doctrine  stated  in  the  text  has  been 
estabHshed  for  many  years.  See 
Kerrich  v.  Bransby,  7  Bro.  P.  C.  437; 


Bennett  v.  Vade,  2  Atk.  324;  Allen  v. 
M'Pherson,  1  H.  L.  Cas.  191;  Jones  v. 
Gregory,  2  De  G.,  J.  &  Sm.  87;  Tarver 
V.  Tarver,  9  Pet.  180;  Gaines  v.  Chew, 
2  How.  645;  Adams  v.  Adams,  22  Vt. 
50;  Missionary  Soc.  v.  Eells,  68  Id. 
497;  Colton  v.  Ross,  2  Paige  Ch.  396; 
Hamberlin  v.  Terry,  7  How.  (Miss.) 
143;  Ewell  v.  Tidwell,  20  Ark.  136; 
Blue  r.  Patterson,  1  Dev.  &  Bat.  Eq. 
457;  Hunt  v.  Hamilton,  9  Dana,  90; 
McDowall    I'.    Peyton,    2    Dess.    313 


CH.  II.] 


FRAUD. 


313 


examined  a  few  years  ago,  in  the  Supreme  Court  of  the  United 
States,  and  the  ruhng  in  Allen  v.  iM'Pherson,  in  the  House  of 
Lords,  was  approved  and  followed.  The  rule  was  recognized  as 
general  and  well  settled,  both  in  this  country  and  in  England.^ 
Where,  however,  a  particular  devise  or  bequest  has  been  ob- 
tained through  representations  and  promises  that  it  would  be 
used  for  the  benefit  of  another,  ecjuity  will  prevent  a  fraud  by 
treating  the  devisee  or  legatee  as  a  trustee  for  the  party  intended 
to  be  benefited.' 

200.  Concurrent  jurisdiction  of  equity. 

In  the  second  place,  it  is  to  be  observed  that  while,  as  a  general 
rule,  courts  of  ecjuity  have  jurisdiction  in  all  cases  of  fraud,  they 
will  not  ordinarily  exercise  this  jurisdiction  if  there  is  a  full  and 
adequate  remedy  at  law.^  No  one,  for  instance,  would  think  of 
filing  a  bill  in  equity  in  case  of  a  fraudulent  warranty  on  the  sale 


(where,  however,  the  court  decreed 
that  the  defendant  should  consent  to 
a  revocation  of  the  probate) ;  Sohler 
V.  Sohler,  135  Cal.  323  (where  the 
court,  though  recognizing  the  general 
principal,  yet  held  the  defendant  to 
be  a  trustee  for  the  plaintiff) ;  Bur- 
row V.  Ragland,  6  Humph.  481.  See, 
also.  Waters  v.  Stickney,  12  Allen,  1; 
Watson  V.  Bothwell,  11  Ala.  650; 
Trexler  r.  Miller,  6  Ired.  Eq.  248, 
and  Perry  on  Trusts,  §  182. 

1  Elhs  V.  Davis,  109  U.  S.  485;  Case 
of  Broderick's  Will,  21  Wall.  503; 
California  v.  McGlynn,  20  Cal.  233, 
266.  See  McDaniel  v.  Pattison,  98 
Cal.  86-100;  Langdon  v.  Blackburn, 
109  Id.  19;  Garland  v.  Smith,  127  Mo. 
583,  and  Hans  r.  Holler,  165  Id.  47. 

2Hoge  V.  Hoge,  1  Watts,  213;  Mc- 
Cormick  v.  Grogan,  L.  R.  4  H.  L.  91, 
where  the  rule  is  clearly  stated  by 
Lord  Westbury.  See,  also,  Chamber- 
laine  v.  Chamberlaine,  2  Freem.  34; 
Rockwood  V.  Rock  wood,  1  Leon.  192; 
Cro.  Eliz.  164;  Devenish  v.  Baine.s, 
Prec.  Ch.  4;  Jones  v.  McKee,  3  Pa. 
496;  6  Id.  428;  Irwin  v.  Irwin,  34  Id. 
525;  Church  v.  Ruland,  64  Id.  442; 


Amherst  Coll.  v.  Ritch  (Fayreweather 
Will  Case),  151  N.  Y.  282;  O'Hara 
r.  Dudley,  95  Id.  403;  Ahrens  v. 
Jones,  169  Id.  555;  Gaither  r.  Gaither, 
3  Md.  Ch.  158;  Perry  on  Trusts,  §  181 ; 
Gilpatrick  v.  Glidden,  81  Me.  137. 
Richardson  v.  Green,  15  U.  wS.  App. 
488,  is  a  case  in  which  the  relief  in 
equity  was  afforded  under  the  pro- 
visions of  a  statute.  Tyler  v.  Stett, 
132  Wis.  656. 

sNewham  v.  May,  13  Pri.  749; 
Russell  V.  Clark,  7  Cranch,  69;  Pis- 
cataque  Ins.  Co.  v.  Hill,  60  Me.  183; 
Hackley  v.  Draper,  60  N.  Y.  88; 
Woodman  v.  Freeman,  25  Me.  531; 
Buck  V.  Ward,  97  Va.  209;  though 
see  Clark  v.  Robinson,  58  Id.  137. 
See,  also.  Life  A.ssociation  of  Scotland 
V.  McBlain,  L.  R.  9  Irish  Ch.  176; 
Hoare  v.  Bremridge,  L.  R.  14  Eq. 
522;  8  Ch.  22;  Hard  wick  v.  Forbes,  1 
Bibb,  212;  Boardman  v.  Jackson,  119 
Mass.  161;  Williams  v.  Mitchell,  30 
Ala.  299;  Learned  v.  Holmes,  49  Miss. 
290;  White  v.  Boyce,  21  Fed.  Rep. 
228;  Krueger  v.  Armitage,  58  N.  J. 
Eq.  357;  Fred  Macey  Co.  v.  Macey, 
143  Mich.  138. 


314 


FRAUD. 


[part  li. 


of  a  horse,  or  of  a  deceit  in  the  sale  of  a  bale  of  goods. ^  Even 
where  the  jvirisdiction  of  Courts  of  Chancery  is  limited  to  cases  in 
which  there  is  no  "plain,  adequate,  and  complete  remedy"  at 
law  (as  is  the  case  with  the  Federal  courts,  for  example),-  this 
provision  has  been  held  to  be  declaratory  merely,  and  the  juris- 
diction thus  conferred  is  to  be  measured  by  the  same  standard 
as  that  of  ordinary  Courts  of  Chancery.^  So  far,  however,  as  the 
general  jurisdiction  of  chancery  is  concerned,  and  apart  from 
statutory  limitations,  the  better  opinion  would  seem  to  be  that 
the  cognizance  of  every  case  of  fraud,  with  the  single  exception 
of  fraud  in  obtaining  a  will,  belongs  to  the  Court  of  Chancery, 
even  though  there  may  be  a  complete  remedy  at  law.  The  juris- 
diction in  such  a  case  is  concurrent.  This  is  the  opinion  of  Lord 
Eldon,  Chancellor  Kent,  and  Mr.  Spence.^  The  true  conclusion 
would  appear  to  be  that  equity  would  have  the  poiier  to  enter- 
tain a  bill  in  such  cases,  but  that  it  is  not  according  to  the  usual 
course  and  practice  of  chancery  to  do  so.  AYhere,  however,  the 
remedy  at  law  is  not  full  and  adeciuate,  the  jurisdiction  of  chan- 
cery in  cases  of  fraud  is  undoubted;^  and  where  from  any  cir- 
cumstance whatever,  as  for  mere  discovery  alone,  chancery 
has  once  obtained  jurisdiction,  it  will  go  on  and  do  complete 
justice  in  the  case. 

201.  Exclusive  jurisdiction. 

As  the  jurisdiction  of  ecjuity  embraces  (with  the  qualifica- 
tions already  stated)  fraud  of  all  kinds,  it  affords  relief  in  many 
instances  in  which  no  grounds  for  redress  whatever  exist  at  law. 
In  such  cases,  therefore,  its  jurisdiction  is  exclusive,  and  the 
only  remedy  which  the  injured  party  can  have  is  by  bill  in  chan- 
cery.^    Thus,  a  great  many  transactions  are  presumed  to  be 


1  Newham  v.  May,  13  Price,  751, 
752.  See  Buzard  v.  Houston,  119 
U.  S.  347;  Watson  v.  Bartholomew, 
106  Iowa,  570,  and  the  language  of 
the  court  in  Mack  v.  The  Milage  of 
Frankfort,  123  Mich.  421. 

^  The  Judiciary  Act  of  1789. 

3  Boyce  v.  Grundy,  3  Pet.  215; 
Oelrichs  v.  Spain,  15  Wall.  228.  See 
Clark  r.  Robinson,  58  Me.  137,  and 
ante,  §  13. 

*  See  Evans  v.  Bicknell,  6  Ves.  182; 
Bacon  v.  Bronson,  7  Johns.  Ch.  201; 


1  Spence,  625.  See  dissenting  opin- 
ion of  Bradley,  J.,  in  Buzard  v.  Hous- 
ton (ante),  and  ante,  §  13. 

5  Mortland  v.  Mortland,  151  Pa. 
596.  Equity  jurisdiction  will  not 
attach  when  there  is  a  full,  complete 
and  adequate  remedy  at  law;  and 
this  is  the  case  even  where  fraud  is 
alleged.  Hyde  v.  Baker,  212  Pa.  224; 
Wagner  v.  Fehr,  211  Pa.  435. 

6  See  Kincaid  v.  Conly,  Phil.  Eq. 
270. 


CH.  II.] 


FRAUD. 


315 


fraudulent  in  equity  which  are  not  so  in  law,  where  the  rule  is 
that  fraud  must  be  proved,  and  cannot  be  presumed.  In  equity 
fraud  may  be  inferred  from  attendant  circumstances ; '  it  may  be 
presumed  from  the  subject-matter  of  the  contract,  or  from  the 
relations  of  the  parties ;  or  it  may  afford  ground  for  relief  when  it 
simply  affects  third  persons  not  parties  to  the  transaction.  All 
of  these  heads  will  be  considered  in  detail ;  but  before  doing  so, 
it  will  be  well  to  notice  one  or  two  general  principles  which  Courts 
of  Chancery  have  laid  down  in  regard  to  frauds  of  all  kinds. 

202.  Fraiidiileiit  transactions  voidable,  not  absolntely 
void. 

And,  in  the  first  place,  transactions  tainted  with  fraud  are  not 
absolutely  void,  but  are  voidable  only  at  the  election  of  the  in- 
jured party.-  If  he  chooses  to  remain  satisfied,  the  other  party 
cannot  complain,  and  the  transaction  will  stand.  Another  result 
of  the  voidable  character  of  fraudulent  transactions  is  that  the 
injured  party  ought  to  be  prompt  in  setting  the  transaction 
aside,  as  equity  does  not  encourage  laches.^  Thus,  in  a  case  in 
Iowa,  where  an  infant  was  fraudulently  induced  to  execute  a 
deed  of  land  to  another,  [relieving  that  she  was  merely  executing 
an  instrument  authorizing  the  person  named  therein  to  sell  the 
land,  and  failed  to  make  inquiry  concerning  the  exercise  of  the 
power  for  thirteen  years  after  attaining  majority,  when  she  was 
first  informed  of  the  fraud,  she  was  held  barred  by  her  negli- 
gence from  asserting  her  claim  to  the  premises."*  Moreover,  in- 
nocent third  parties  without  notice  may  acquire  rights  and  in- 
terests of  which  they  cannot  be  deprived.  A  bona  fide  purchaser, 
\\ithout  notice,  for  a  valuable  consideration,  will  be  protected 
even  though  he  claim  under  a  grantor  who  has  obtained  the 
IH'operty  by  fraud,  which  would,  as  between  the  original  parties, 
render  its  acquisition  invalid.^ 


1  See  Kisterbock's  Appeal,  51  Pa. 
485. 

2  Oakes  v.  Turquand,  L.  R.  2  H.  L. 
346;  Pearsoll  v.  Chapin,  44  Pa.  9; 
Negley  v.  Lindsay,  67  Id.  228;  Wood 
V.  Goff,  7  Bush,  63;  Lindsley  v. 
Ferguson,  49  N.  Y.  625;  Consolidated, 
etc.,  Co.  V.  O'Neill,  25  111.  App.  313. 

3  Willoughby  v.  Moulton,  47  N.  H. 
208;    Weeks  v.   Robie,    42   Id.   316; 


Akerly  v.  Vilas,  21  Wis.  88;  Wilbur  v. 
Flood,  16  Mich.  40;  Badger  v.  Badger, 
2  Wall.  87,  94;  Jones  v.  Smith,  33 
Miss.  215;  Campau  v.  Van  Dyke,  15 
Mich.  371;  Barnes  v.  Starr,  64  Conn. 
1.36-157. 

■»  Weaver  v.  Carpenter,  42  la.  342. 

s  Oakes  v.  Turquand,  supra.  See, 
also,  Scholefield  v.  Templer,  4  De  G. 
&  J.  429;  Colorado  Coal  Co.  v.  United 


316 


FRAUD. 


[part  II. 


There  is,  indeed,  a  distinction  between  deeds  and  other  in- 
struments which  a  man  intends  to  execute,  though  his  intention 
may  be  brouglit  about  by  fraudulent  means,  and  those  which 
he  has  no  intention  to  execute,  but  executes  under  the  impres- 
sion that  the  instrument  is  of  a  different  character  from  what  it 
actually  is,  or,  in  other  words,  executes  the  wrong  paper.  In 
the  latter  case  the  instrument  is  absolutely  void,  and  the  law 
above  stated  in  relation  to  voidable  instruments  would,  in  gen- 
eral, not  apply. ^ 

203.  Within  what  time  redress  imist  be  sought. 

The  next  general  rule  to  be  noticed  in  case  of  fraud  is,  that 
in  equity  no  length  of  time,  however  great,  will  be  a  bar  to  the 
right  to  relief,  if  the  injured  party  has  been  in  ignorance  of  the 
fraud.^  In  courts  of  equity,  ordinarily,  the  Statute  of  Limita- 
tions is  a  good  plea  in  bar;  ^  and,  moreover,  it  is  a  general  prin- 
ciple that  stale  claims  ought  not  to  be  encouraged."*    But  in  the 


States,  12.3  U.  S.  307;  Dettra  v.  Kest- 
ner,  147  Pa.  566. 

1  See  Donaldson  v.  Ciillot,  L.  R.  3 
Eq.  277;  Ogilvie  v.  Jeaffreson,  2  Giff. 
353;  Kerr  on  Fraud  and  Mistake,  50; 
Livingston  v.  Hubbs,  2  Johns.  Ch. 
512;  County  of  Schuylkill  v.  Copley, 
67  Pa.  386.  See,  also.  Chamberlain 
V.  McClurg,  8  W.  &  S.  .36;  McHugh  v. 
County  of  Schuylkill,  67  Pa.  396; 
MedUn  v.  Buford,  115  N.  Car.  260; 
Cutler  V.  Roanoke  R.  R.  and  Lumber 
Co.,  128  Id.  477. 

2  Charter  v.  Trevelyan,  11  CI.  &  Fin. 
714;  Michoud  v.  Girod,  4  How.  561; 
Percy  v.  Cockrill's  Extr.,  10  U.  S. 
App.  574-589;  Relf  i-.  Eberly,  23  la. 
467;  Cock  v.  Van  Etten,  12  Minn.  522; 
Dean  v.  Ross,  178  Mass.  397;  Zin- 
keison  v.  Lewis,  63  Kan.  590;  Witt  v. 
Day,  112  la.  110.  See  Vane  v.  Vane, 
L.  R.  8  Ch.  App.  398,  under  the 
English  Statute  of  Limitations  of 
William  IV.  The  Statute  of  Limi- 
tations will  not  commence  to  run 
against  an  action  for  fraud  until  the 
fraud  is  discovered  or  until  such 
time  as  the  same  by  the  exercise  of 
reasonable    diligence    may    be    dis- 


covered.    Faust  V.  Hosford,  119  la. 
97. 

3Neely's  Appeal,  85  Pa.  490; 
Bickel's  Appeal,  86  Id.  204;  Blanch- 
ard  V.  Williamson,  70  111.  647;  Lans- 
ing V.  Starr,  2  Johns.  Ch.  150;  Kane 
V.  Blood  good,  7  Id.  90,  where  the  sub- 
ject is  examined;  Smith  v.  Wood,  42 
N.  J.  Eq.  563. 

*  See  Farnam  v.  Brooks,  9  Pick. 
212;  Ward  v.  Van  Bokkelen,  1  Paige 
Ch.  100;  Shaver  v.  Radley,  4  Johns. 
Ch.  310;  Farr  v.  Fan;  1  Hill  (Eq.), 
391;  Field  v.  Wilson,  6  B.  Mon.  479; 
Thompson  v.  Blair,  3  Murph.  593; 
Bruce  r.  Child,  4  Hawks,  372;  Perry 
V.  Craig,  3  Mo.  365;  Ferris  v.  Hen- 
derson, 12  Pa.  54;  Bank  of  United 
States  V.  Biddle,  2  Pars.  Eq.  31 ;  Mc- 
Dowell V.  Goldsmith,  2  Md.  Ch.  370; 
Herrod  v.  Fountleroy,  3  J.  J.  Marsh. 
548;  Phillips  v.  Belden,  2  Edw.  Ch. 
1;  Anderson  v.  Burwell,  6  Gratt.  405; 
Maxwell  v.  Kennedy,  8  How.  210; 
Paschall  v.  Hinderer,  28  Ohio,  568; 
Barnes  i'.  Taylor,  27  N.  J.  Eq.  259; 
Norfolk,  etc.,  Hosiery  Co.  v.  Arnold, 
49  Id.  390;  In  re  Butler,  2  Hugh,  247; 
Butler  V.  Haskell,  4  Dess.  651;  Gres- 


CH.  II.]  FRAUD.  317 

case  of  undiscovered  fraud  the  rule  is  different ;  and  no  length  of 
time  can  secure  those  who  have  benefited  thereby,  in  the  enjoy- 
ment of  their  gains. ^  The  principle  may  be  said  to  be  that  where 
actual  fraud  is  proven,  the  court  will  look  with  much  indulgence 
upon  the  circumstances  tending  to  excuse  the  plaintiff  from  a 
prompt  assertion  of  his  rights.  "  Indeed  in  a  case  of  an  active 
and  continuing  fraud  like  this,  we  should  be  satisfied  with  no 
evidence  of  laches  that  did  not  amount  to  proof  of  assent  or 
acquiescence."  ^ 

In  order  to  prevent  the  statute  from  running,  however,  actual 
concealment  would  seem  to  be  necessary;  ^  the  mere  fact  of  non- 
discovery  will  not  be  enough,'*  unless  the  relation  of  the  parties 
is  such  that  it  was  the  duty  of  the  party  complained  of  to  make 
the  disclosure.'^ 

204.  Fraudulent  transactions  must  be  adopted,  or  set  aside 

in  toto. 

Again,  it  must  also  be  remembered  that,  in  cases  of  fraud, 
the  injured  party  cannot  repudiate  the  transaction  so  far  as  it 
is  injurious  to  himself,  and  adopt  it  so  far  as  it  is  beneficial.  He 
nmst  either  allow  it  to  stand,  or  set  it  aside  in  toto.^ 

Moreover,  a  party  who  has  brought  an  action  which  is  based 
upon  an  affirmance  of  an  alleged  fraudulent  transaction  cannot, 
at  all  events  in  that  action,  be  heard  to  complain  of  the  fraud. 

ley  V.   Mousley,   4   De  G.   &  J.   78;  601;  Humphreys  v.  Mattoon,  43  Id. 

Thomson  v.  Eastwood,  2  App.  Cas.  S.'iG;  Hudson  v.  Wheeler,  34  Tex.  356; 

215;  Allore  v.  Jewell,  94  U.  S.  512;  Munson    v.    Hallowell,    26    Id.    477; 

Sullivan  v.  Portland  R.  Co.,  Id.  811;  Callis  v.  Waddy,  2  Munf.  511;  Reed  v. 

Lansdale  i'.  Smith,  106  Id.  391 ;  Hines  Minell,  30  Ala.  61 ;  Meader  v.  Norton, 

V.    Thorn,    57    Tex.    625;    Perry    on  11  Wall.  443;  Bigelow  on  Fraud,  445; 

Trusts,  §  299;  post,  §  260;  Woodruff  Terry  v.  Fontaine,  83  Va.  451. 
V.  Williams,  35  Colo.  28.  s  Wilson    v.    Ivy,    32    Miss.    233; 

1  Ludington  v.  Patton,  111  Wis.  Buckner  v.  Calcote,  28  Id.  432; 
208.  Fau.st  v.  Hosford,  119  la.  97. 

2  Saxlehner  v.  Eisner  &  Mendel-  *  Great  Luxembourg  Ry.  Co.  v. 
son  Co.,  179  U.  S.  39;  Mclntire  v.  Magnay,  25  Beav.  594;  Farmers' 
Pryor,  173  Id.  38;  McLean  v.  Flem-  Bank  r.  (iroves,  12  How.  51;  Potter 
ing,  96  Id.  245;  Menendez  v.  Holt,  v.  Titcomb,  22  Me.  300;  Rigdon  v. 
128  Id.  514;  Portuondo  Cigar  Co.  v.  Walcott,  141  111.  649;  Och  v.  M.  K. 
Cigar  Co.,  222  Pa.  116.  &  T.  Ry.  Co.,  130  Mo.  27;  Wilson  v. 

3  Dorsey  Machine  Co.  ?'.  McCaffrey,  New  U.  S.  Cattle  Ranch  Co.,  36  U.  S. 
139  Ind.  545;  Loomis  )».  Missouri  Pac.  App.  634;  Kerr  on  Fraud  and  Mis- 
Ry.  Co.,  165  Mo.  469.  take,  52.     See  Bellamy  v.  Sabine,  2 

<  Peck  V.  Bullard,  2  Humph.  41;  Phil.  Eq.  425;  Baird  v.  Howard,  51 
Township  of  Boomer  D.  French,  40  la.       Ohio  St.   57;   Bliss  v.  N.  Y.  Cent.  & 


Q 


18  FRAUD.  [part  II. 


If  he  sues  (for  example)  for  the  fruits  of  a  breach  of  trust,  he 
must  be  deemed  to  have  acquiesced  in  the  illegal  act.^  And  a 
party  who  has  participated  in  a  fraud,  or  contributed  to  the 
means  by  which  it  has  been  effected,  will  not  be  permitted  to 
recover  the  amount  which  he  has  advanced  until  innocent  par- 
ties have  been  made  whole. ^ 

205.  General  division  of  the  subject  of  Fraud. 

Having  premised  the  above  general  observations  upon  the 
nature  of  fraud  and  the  scope  of  the  jurisdiction  in  chancery 
based  upon  it,  it  will  now  be  proper  to  consider  more  in  detail  the 
several  subdivisions  of  fraud,  and  the  different  instances  which 
are  found  under  each. 

The  general  division  of  fraud  which  has  usually  been  made  by 
judges  and  authors,  is  into  fraud  which  grows  out  of  direct  facts 
or  circumstances  of  imposition  or  actual  fraud,  and  fraud  which 
is  inferred  from  the  nature  of  the  transaction  or  the  relations  of 
the  parties,  and  which  is  therefore  known  as  presumptive  or 
constructive  fraud.  This  division  has  the  sanction  of  the  great 
name  of  Story,  and  has  been  followed  by  later  writers,  both  upon 
the  particular  subject  of  fraud  and  upon  the  general  doctrines  of 
equity.^ 

But  within  the  past  few  years  there  has  arisen  a  tendency  to 
narrow  the  meaning  of  the  word  fraud;  and  in  obedience  to  this 
tendency  the  term  ''constructive''  fraud  and  the  kindred  term 
"legal"  fraud  have  been  not  a  little  criticised.  "I  do  not  under- 
stand legal  fraud,"  said  Lord  Bramwell  in  Weir  v.  Bell,^  decided 
by  the  Court  of  Appeal  in  1878,  "to  my  mind  it  has  no  more 
meaning  than  legal  heat  or  legal  cold,  legal  light  or  legal  shade;"' 
and  the  same  idea  was  expressed  by  the  same  judge,  in  some- 
what different  language,  in  the  now  famous  case  of  Derry  v. 
Peek.''    Again,  in  Joliffe  v.  Baker,^  Mr.  Justice  Watkins  Wilhams 

Hud.  R.  R.  R.  Co.,  160  Mass.  447,  and    particularly    sec.     258,    where 

and  .\llen  ?;.  Henn,  197  111.  486,  for  Constructive  Fraud  is  defined.     See, 

illustrations  of  exceptional  cases.  also,  Bigelow  on  Fraud,  Introduction; 

1  See  Coleman  V.  Columbia  Oil  Co.,  Pomeroy  (Eq.  Juris.);  and  Kerr  on 
51    Pa.    77;    Carlton    v.    Hulett,    49  Fraud  and  Mistake. 

Minn.  308.  *  2  Ex.  Div.  243. 

2  Kisterbock's  Appeal,  51  Pa.  483;  s  14  App.  Cas.  346.    See  Angus  v. 
.Merrill  v.  Wilson,  66  Mich.  232.  Clifford  [1891],  2  Ch.  449.     As  long 

3  See  Story's  Equity  Jurisprudence,  ago  as  1850,  Chief  Justice  Gibson  had 


8  11  Q.  B.  Div.  271. 


CH.  II.]  FRAUD.  *  319 

quoted  the  above  remark  of  Lord  Bramwell  with  approval,  and 
then  went  on  to  say:  "Armed  with  this  authority  of  Lord  Bram- 
well, I  reject  the  phrase  'legal  fraud,'  as  distinguished  from 
moral  fraud  and  deceit,  as  wholly  inapplicable  and  inappropriate 
to  legal  discussion." 

Finally,  the  modern  opinion  upon  this  subject  has  been 
sunmied  up  in  the  rather  emphatic  declaration  of  a  distinguished 
writer,  that  "legal  or  constructive  fraud  may  be  discarded  as  a 
worse  than  useless  figment."  ^ 

While,  therefore,  students  of  the  jurisprudence  of  Courts  of 
Chancery  have  become  familiarized  with  the  division  of  fraud 
into  actual  and  constructive,  and  while  this  division  has  the 
sanction  of  continued  use  and  great  authority,  and  while  it  may 
be  premature  to  say  that  the  time  has  come  for  discarding  it  as  a 
useless  figment,  it  is  yet  desirable  to  bear  in  mind  the  tendency 
of  modern  criticism  upon  the  subject,  and  not  to  be  unmindful  of 
the  scientific  view  of  the  matter  which  is  now  being  taken  by 
thoughtful  writers  and  distinguished  judges. 

But  whatever  may  be  the  theory,  yet  for  the  purposes  of  con- 
venient and  practical  consideration,  the  celebrated  division  of 
fraud  made  by  Lord  Hardwicke,  in  the  case  of  Chesterfield  ?'. 
Janssen,^  is  ])erhaps  the  best.  That  learned  judge  there  divided 
fraud  into  four  classes,''  viz. : — 

1.  Fraud  arising  fiom  facts  and  circumstances  of  imposition. 

2.  Fraud  arising  from  the  intrinsic  matter  of  the  bargain  it- 
self. 

3.  Fraud  presumed  from  the  circumstances  and  condition  f  f 
the  parties  contracting ;  and 

4.  Fraud  affecting  third  persons  not  parties  to  the  agreement. 

It  will  be  observed  that  the  first  of  these  subdivisions  em- 
braces cases  of  aciual  fraud;  the  second  and  third  include  in- 
stances of  ('onstrvctire  fraud ;  and  the  last  has  relation  to  third 
})arties  whom  the  fraud  may  affect . 

206.  General  nature  of  actual  fraud. 

As  to  tl.c   fii'st   of  the  above-mentioned  heads  of  fraud,   it 
may  be  stat(Hl,  as  a  general  iiile,  that  fraud  consists  in  any- 
observed,  in  Bokce  /•.  Wnlkfr,  14  I'a.  2  i  Atk.  301;  2  Vos.   12');  1  Lead. 
141,  that  "a  conslriirtirr  deceit   is  a       C'as.  Eq.  428  (541,  4th  Eng.  ed.). 
new  thiriR  under  tiie  sun."                            3  Xhe  division  is  in  fact  into  fve 

1  Pollock  on  Contracts,  480;  chap-       classes;  but  the  last  class,  that  of  re- 
ter  on  Misrepresentation  and  Fraud.       versioners,    is   said    by    Lord    Hard- 


320 


FRAUD. 


[part  II. 


thing  which  is  calculated  to  deceive,  whether  it  be  a  single  act 
or  con)l)ination  of  circumstances;  whether  it  be  by  suppression 
of  the  truth  ^  or  a  suggestion  of  what  is  false;  whether  it  be  bj'' 
a  direct  falsehood,  or  by  innuendo,  by  speech  or  by  silence,^  by 
woi'd  of  mouth  or  by  a  look  or  gesture.^  Fraud  of  this  kind  may 
be  defined  to  be,  any  artifice  by  which  a  person  is  deceived  to 
his  disadvantage."*  Where  a  person  claims  relief  on  the  ground 
that  he  has  thus  been  deceived,  it  is  his  duty  (according  to  the 
doctrine  laid  down  by  an  English  chancellor  in  a  modern  case)  to 
establish  two  things:  first,  actual  fraud,  which  is  to  be  judged  of 
by  the  nature  and  character  of  the  representations  made,  con- 
sidered with  reference  to  the  object  for  which  they  were  made, 
the  knowledge  or  means  of  knowledge  of  the  person  making 
them,  and  the  intention  which  the  law  justly  imputes  to  every 
man,  to  produce  those  consequences  which  are  the  natural  results 
of  his  acts;  and,  secondly,  he  must  establish  that  this  fraud  was 
an  inducing  cause  to  the  contract,  for  which  purpose  it  must  be 
material,  and  it  must  have  produced  in  his  mind  an  erroneous 
belief,  influencing  his  conduct.*'^ 

The  representations,  therefore,  which  deserve  the  name  of 
fraudulent  are  usually  said  to  be  representations  which  are  false 
in  themselves,  false  to  the  knowledge  of  the  party  making  them, 
or  made  by  one  who  does  not  care  whether  they  are  tme  or  false,® 
reasonably  relied  upon  by  the  other  party,  and  furnishing  a  sub- 
stantial inducement  to  his  action.'^ 


wicke   himself   to  be   properly  com- 
pounded of  the  others. 

1  8ce  Mallory  v.  Leach,  35  Vt.  156; 
Ruffner  v.  Ridley,  81  Ky.  165. 

2  Silence,  however,  is  by  no  means 
necessarily  equivalent  to  direct  af- 
firmation; for  in  very  many  cases  no 
duty  of  disclosure  exists.  Ordi- 
narily, indeed,  it  is  only  where,  from 
what  has  passed  in  the  transaction  or 
from  some  relationship  between  the 
parties,  disclosure  becomes  a  duty, 
that  silence  is  a  fraud.  The  People's 
Bank's  Appeal,  !»3  Pa.  107;  Lomcrson 
?'.  Johnston,  47  N.  J.  Eq.  .312;  Chicora 
Fertilizer  Co.  r.  Dunan,  91  Md.  144. 

■•'Lobdell  r.  Baker,  1  Met.  193; 
Mizncr  v.  Kussell,  29  Mich.  229;  Lee 
V.  Jones,  14  C.  B.  (n.  s.)  384;  Croyle 


V.  Moses,   90   Pa. 
Donovan,  9  Allen, 
Klamp,    16    Neb. 
Fraud,  4. 

<  See    Juzan    v. 


250; 

140: 

174; 


Donovan  v. 
Faulkner  r. 
Bigelow    on 


Toulmin,    9    Ala. 


684;  Smith  v.  Richards,  13  Pet.  36; 
Laidlaw  v.  Organ,  2  Wheat.  195; 
Tyler  i'.  Black,  13  How.  231. 

5  By  the  Earl  of  Selborne,  L.  C,  in 
Smith  V.  Chadwick,  9  App.  Cas.  190. 

6  Derry  v.  Peek,  14  App.  Cas.  372; 
Edgington  r.  Fitzmaurice,  29  Ch.  D. 
459.  See,  also,  the  remarks  of 
Strong,  J.,  in  Graham  v.  Hollinger,  46 
Pa.  57. 

7  In  Adams's  Equity,  p.  176,  the 
rule  is  laid  down  that  the  represen- 
tations must  be  false  in  themselves, 
false  to  the  knowledge  of  the  party 


CH.  II.] 


FRAUD. 


321 


207.  Matters  of  opinion. 

The  representation  must,  in  the  first  instance,  be  false  in  point 
of  fact ;  and  it  necessarily  follows  that  it  must  be  a  representation 
of  that  which  is  a  matter  of  fact/  and  not  a  mere  matter  of 
opinion  or  judgment.^  No  man  can  be  held  responsible  for  an 
error  or  mistake  in  his  opinion,  unless  his  language  amounts  to  a 
warranty,  or  unless  he  puts  forth,  in  the  guise  of  an  opinion, 
some  statement  of  fact  which  he  knows  to  be  incorrect,  and  upon 
which  the  other  party  relies;  ■"'  or  unless  his  expression  of  opinion 
is  coupled  with  active  and  effective  intervention  to  prevent  in- 


making  them,  reasonably  relied  upon 
by  the  other  party,  and  furnishing  a 
substantial  inducement  to  the  con- 
tract. But  this  statement  must,  so 
far  as  the  phrase  "  false  to  the  knowl- 
edge of  the  party  making  it "  is  con- 
cerned, be  qualified  in  the  manner 
stated  in  the  text.  See,  also,  Bige- 
low  on  Fraud,  p.  3;  Stevens  ?'.  Moore, 
73  Me.  559;  Masterton  v.  Beers,  1 
Sweeney,  406;  Byard  r.  Holmes,  5 
Vroom,  297;  Hubbell  v.  Meigs,  50 
N.  Y.  489;  Smith  v.  Dye,  15  Mo.  .\pp. 
585;  Livermore  r.  Middlesborough 
Town  Lands  Co.,  106  Ky.  140,  and 
Jones  t'.  Id.,  106  Ky.  194.  A  man 
is  responsible  for  a  false  representa- 
tion, even  though  he  has  no  interest 
in  the  deception.  Weed  v.  Case,  55 
Barb.  547. 

1  Leake  on  Contracts,  182.  The 
fact  misrepresented  need  not  be,  nec- 
essarily, a  physical  or  tangible  fact; 
it  may  be  a  statement  of  a  mental 
condition,  of  feeling,  or  of  affection; 
and  if  the  statement  of  such  condi- 
tion or  feeling  or  affection  be  false,  it 
will  justify  the  setting  aside  of  any- 
thing done  induced  by  such  mis- 
statement. Basye  v.  Basye,  152  Ind. 
172,  a  case  of  misrepre.sentation  by  a 
wife  as  to  her  affection  for  her  hus- 
band. A  court  of  equity  will  set 
aside  a  deed  from  husband  to  wife 
procured-  by  her  by  fraudulently 
pretending  affection  for  him  and 
promising  to  be  a  faithful  wife  with 

21 


the  intention  of  abandoning  him 
when  she  obtained  the  property. 
Hursen  r.  Hursen,  212  111.  377. 

2  See  Southern  Development  Co.  r. 
Silva,  125  U.  S.  251-256;  Hazard  v. 
Irwin,  18  Pick.  105;  Max  Meadows 
Land  Co.  v.  Brady,  92  Va.  71;  Gar- 
ber  V.  Bresee,  96  Id.  644;  Anderson 
V.  Creston  Land  Co.,  Id.  257;  Camp- 
bell V.  Building  Assn.,  98  Id.  729; 
Johnson  v.  Nat.  Bldg.  and  Loan 
A.ssn.,  125  Ala.  465;  Railway  Co. 
V.  Bennett,  63  Kan.  781;  Buena 
Vista  Co.  r.  Billmyer,  48  W.  Va.  382; 
Hallinger  r.  Zimmerman,  58  N.  J. 
Eq.  217;  Curry  v.  Keyser,  30  Ind. 
214;  Stow  V.  Bozeman,  29  Ala.  397; 
Watts  V.  Cummins,  59  Pa.  84; 
Sawyer  v.  Prickett,  19  Wall.  146. 
For  cases  illustrative  of  misrepre- 
sentations of  fact,  see  Tyler  v.  Black, 
13  How.  230;  Bennett  v.  Judson,  21 
N.  Y.  238;  Manning  v.  Albee,  11 
Allen,  522;  Bradfield  v.  Elyton  Land 
Co.,  93  Ala.  527;  Merrillat  v.  Plum- 
mer.  111  la.  643;  Strickland  v.  Gray- 
bill,  97  Va.  602;  Miller  v.  ^'oorheis, 
115  Mich.  356;  Beyer  v.  National 
Building  &  Loan  Assn.,  131  Ala.  369; 
Dudley  r.  Minor,  100  Va.  728;  Hurl- 
bert  r.  Kellogg  Co.,  115  Wis.  225; 
Brown  r.  South  Joplin  Lead  Co.,  194 
Mo.  681. 

3  Birdsey  r.  Butterfield,  34  Wis.  52; 
Pike  V.  Fay,  101  Mass.  134;  Bigelow 
on  Fraud,  26;  Mohler  v.  Carder,  73  la. 
582;  Curtis  v.  Stilson,  38  Kan.  302. 


I 


322  FRAUD.  [part  II. 

vestigation.^  Subject  to  these  qualifications,  the  general  rule 
is  that  no  one  is  entitled  to  rely  upon  an  assertion  which  must 
of  necessity  be  a  mere  statement  of  opinion.  A  man  who  is  deal- 
ing with  another  has  a  right  to  rest  upon  an  assertion  of  a  fact 
made  by  the  latter;  -  but  he  has  no  right  to  rely  upon  the  latter's 
opinion, — unless  indeed  he  is  an  expert,  in  which  case  the  parties 
do  not  deal  upon  equal  terms,  and  the  ordinary  rule  does  not 
apply.^ 

Nor  is  it  a  fraud  for  a  man  to  praise  his  own  wares  and  extol 
their  value,'*  and  to  depreciate  that  which  he  is  to  receive  in  re- 
turn.^ Such  exaggerations  are  common  in  all  sales  or  barters; 
and  every  man  has  a  right  to  praise  the  commodity  which  he 
offers,  provided  he  does  not  overstep  the  line,  and  assert  that  to 
be  a  fact  which  is  not  so,  or  enter  into  a  warranty  or  make  a 
representation  which  is  so  far  connected  with  the  contract  as  to 
enter  into  and  form  a  part  of  it.^  A  man,  for  example,  who  is 
selling  a  rope,  may  say  that  the  rope  is  a  good  rope,  and  that  he 
believes  that  it  will  stand  the  strain  of  a  heavy  weight,  and  he 
cannot  be  hold  responsible  if  the  event  is  otherwise.  But  if 
he  were  to  say  that  the  rope  had  been  tested  with  so  many 

1  Mudsill  Mining  Co.  v.  Watrons,  22  opportunity  to  inspect.  Long  v. 
U.  S.  App.  12,  21,  47-50.  Kendall,    17    Okla.    70;    Kincaid    v. 

2  See  Mead  v.  Bunn,  32  N.  Y.  295;       Price,  82  Ark.  20. 

Marsh    v.   Scott,    125    111.    114;   Mc-  s  French  v.  Griffin,   18  N.  J.  Eq. 

Michael  v.  Webster,  57  N.  J.  Eq.  295.  279;  Hunter  v.  McLaughlin,  43  Ind. 

a  See     Picard     v.    McCormick,     11  38;  Crocker  r.  Manley,  164  111.  282;  2 

Mich.  68;  Kost  v.  Bender,  25  Id.  515;  Kent's   Com.    485;    Leake    on    Con- 

Hedin   v.   Minneapolis   Institute,    62  tracts,  183. 

Minn.   146;  Nash  v.  Minnesota  Title  s  jjaygarth  ?'.   Wearing,   L.  R.   12 

Ins.  &  Trust  Co.,   159  Mass.  437  (a  Eq.  327,  where  false  representations 

representation  as  to  the  validity  of  a  as  to  the  value  of  an  estate,  made  by 

title);  Id.,   163  Mass.  574;  Cutler  v.  the  purchaser,  and  relied  upon  by  the 

Roanoke  R.  R.  and  Lumber  Co.,  128  vendor,  were  held  sufficient  to  jus- 

N.  C.  477.  tify  an  application  to  rescind  the  sale. 

*  Simplex  commendatio  non  ohligat.  "This   was  not   a   mere   purchaser's 

See  statement  of  the  law  by  Harlan,  assessment,"     said     Vice-Chancellor 

,1..  in  Lehigh  Zinc  &  Iron  Co.  r.  Bam-  Sir  John  Wickens,  "but  a  deliberate 

ford,    150   U.   S.   673:   and   see,   also  statement  made  to  her  (the  vendor), 

.Kdams  v.  Soule,  33  Vt.  549;  Scott  r'.  for  her  guidance  in  the  transaction, 

Burnight,    131    la.    507;    McElya    v.  and  was  acted  on  by  her  in  reliance 

Hill,    105   Tenn.    319,    and    Gaty   v.  on  its  good  faith  and  accuracy."    See 

Holcomb,  44  Ark.  216,  where  it  was  Schumaker  v.  Mather,  133  N.  Y.  590. 

said  that  the  rule  allowing  commcn-  See,  also,  Adams  v.  Soule,  33  Vt.  549, 

dation  by  a  vendor  was  applicable  where  the  court  pointed  out  the  dif- 

only  when  the  purchaser  has  a  full  ference  between  a  case  in  which  there 


CH.  II.] 


FRAUD. 


323 


pounds  weight,  when  in  point  of  fact  it  had  not;^  or  were  to 
warrant  the  rope  to  be  of  a  particular  quahty,  and  it  was  not  of 
that  quahty;  or  were  to  assert  that  it  was  fit  for  the  particular 
purpose  for  which  the  purchaser  was  buying  it,  and  it  were  to 
turn  out  to  be  unsuited  for  that  purpose;  in  all  such  cases  the 
vendor  would  be  entitled  to  have  the  contract  rescinded.^ 

A  party  should  not  state  as  a  fact,  i.  e.,  as  a  matter  of  actual 
knowledge,  that  as  to  which  he  has  only  an  opinion  or  belief.^ 

208.  Prospectuses  of  projected  companies;  Central  Railway 
Co.  V.  Kisch. 

The  rules  in  regard  to  fairness  in  representations  are  to  be 
particularly  observed  in  prospectuses  of  projected  companies. 
The  utmost  candor  and  honesty  ought  to  characterize  such  pub- 
lic statements.  Those  who  issue  a  prospectus  holding  out  to 
the  public  the  great  advantages  which  will  accrue  to  persons 
who  will  enter  into  a  proposed  undertaking,  and  inviting  them 


was  merely  "that  recommendation 
and  representation  which  one  natu- 
rally makes  of  his  own  property  for 
the  purpose  of  convincing  the  pur- 
chaser of  its  desirableness;"  and  a 
case  in  which  the  representations  as 
to  value  are  the  result  of  a  fraudulent 
conspiracy.  See,  also,  McKnight  v. 
Thompson,  39  Neb.  752;  Leonard  v. 
Springer,  197  111.  532,  and  Stack  v. 
Nolte,  29  Wash.  188. 

1  See  Sieveking  v.  Litzler,  31  Ind. 
17,  where  it  was  held  that  while  mere 
assertions  as  to  the  value  of  the  mill, 
which  was  the  subject  of  the  sale, 
would  not  have  been  any  foundation 
for  relief,  yet  a  false  statement  that 
the  mill  could  saw  a  certain  Jiumber 
of  feet  of  lumber  per  diem,  was  a 
ground  for  rescission.  To  the  same 
effect  are  Faribault  v.  Sater,  13  Minn. 
223;  Reid  v.  Flippen,  47  (la.  273; 
Harvey  r.  Smith,  17  Ind.  272;  Allin 
V.  Millison,  72  111.  201;  Ilorton  r. 
Lee,  lOG  Wis.  439,  and  Martin  v. 
Jordan,  60  Me.  531.  Representations 
as  to  the  original  coat  of  the  property, 
where  there  is  no  fiduciary  relation 
between  the  parties,  have  been  held 


in  some  cases  to  furnish  no  ground  for 
a  rescission.  Holbrook  v.  Connor, 
60  Me.  578;  Hemmer  v.  Cooper,  8 
Allen,  334;  Mooney  v.  Miller,  102 
Mass.  220;  Cooper  v.  Lovering,  106 
Id.  79;  XcBtling  v.  Wright,  72  III. 
390;  Tuck  v.  Downing,  76  Id.  71; 
Sowers  v.  Parker,  59  Kan.  12;  Sipola 
r.  Winship,  74  N.  H.  240.  See,  how- 
ever, contra,  Simar  v.  Canaday,  53 
N.  Y.  298;  Fairchild  v.  McMahon, 
139  X.  Y.  290;  Beare  v.  Wright,  14 
N.  D.  26;  Cruess  v.  Fessler,  39  Cal. 
336;  Gilford  v.  Carvill,  29  Id.  589; 
Davis  V.  Jackson,  22  Ind.  233;  Neil  v. 
Cummings,  75  III.  170;  Van  Epps 
r.  Harrison,  5  Hill,  63;  Morehead 
r.  Eatles,  3  Bush,  121;  McFadden  v. 
Robinson,  35  Ind.  24;  McAleer  v. 
Horsey,  35  Md.  439;  Thompson  v. 
Hardy,  19  S.  D.  91. 

2  The  whole  subject  of  the  right  to 
rescind  contracts  of  sale  of  personal 
chattels  for  misrepresentation  will  be 
found  di.scussed  in  the  note  to  Chan- 
delor  V.  Lopus,  1  Smith's  Lead.  Cas. 
299. 

3  Kirkpatrick  v.  Reeves,  121  Ind. 
280. 


324 


FRAUD. 


[PART  II, 


to  take  shares  upon  the  faith  of  the  representations  therein  con- 
tained, are  bound  to  state  everything  with  strict  and  scrupulous 
accuracy,  and  not  only  to  abstain  from  stating  as  a  fact  that 
which  is  not  so,  but  to  omit  no  one  fact  within  their  knowledge, 
the  existence  of  which  might  in  any  degree  affect  the  nature,  or 
extent,  or  quality  of  the  privileges  and  advantages  which  the 
prospectus  holds  out  as  an  inducement  to  take  shares.^  If  it 
can  be  shown  that  a  material  representation,  which  is  not  true, 
is  contained  in  the  prospectus,  or  in  any  document  forming  the 
foundation  of  the  contract  between  the  company  and  the  share- 
holder, and  the  latter  comes  within  a  reasonable  time,  and  under 
proper  circumstances,^  to  be  released  from  that  contract,  the 
courts  are  bound  to  relieve  him  from  it.^ 

209.  Puffing;  3Iortimer  v.  Bell. 

There  is,  however,  a  species  of  representation  as  to  value  which 
is  fraudulent,  viz.,  that  which  is  known  as  puffing  at  auctions. 
Puffing  is  where  a  fictitious  competition  is  got  up  by  the  false 
bidding  of  one  or  more  persons,  by  which  real  bidders  are  misled 
and  are  induced  by  the  false  appearance  of  a  demand,  which  does 
not  actually  exist,  to  make  their  offers.  Such  a  sale  cannot  be 
enforced.''    The  rule  at  law  in  such  cases,  singular  to  say,  seems 


1  New  Brunswick,  etc.,  Railway 
Co.  V.  Muggeridge,  1  Dr.  &  Sm.  363; 
Directors  of  Central  Railway  Co.  of 
Venezuela  v.  Kisch,  L.  R.  2  H.  L. 
113.  It  was,  however,  said  by  Lord 
Justice  Turner,  that  in  cases  of  this 
kind  "  allowances  must  be  made  for 
some  latitude  of  statement.  "  3De  G., 
J.  &  S.  13.">.  See,  also,  Hallows  ?'. 
Fernie,  L.  R.  3  Ch.  475;  Columbia 
Electric  Co.  ?•.  Dixon,  46  Minn.  463. 

2  As  to  the  effect  on  the  rights  of 
creditors  when  the  corporation  has 
become  insolvent  and  has  been 
placed  in  the  hands  of  receivers,  see 
Scott  V.  Latimer,  33  C.  C.  A.  1. 

3  Smith's  Case,  L.  R.  2  Ch.  609. 
See,  also.  Swift  v.  Winterbotham,  L. 
R.  8  Q.  B.  244;  Paddock  v.  Fletcher, 
42  Vt.  389;  McClcUan  v.  Scott,  24 
Wis.  81;  Bagshaw  v.  SejTnour,  4  C. 
B.  (x.  8.)  873;  Clarke  v.  Dickson,  6 


Id.  453;  Cox  v.  National  Coal  Co.,  61 
W.  Va.  291.  In  such  cases  the  direc- 
tors will  be  liable.  Edgington  r.  I'itz- 
maurice,  29  Ch.  D.  459;  Arnison  v. 
Smith,  41  Id.  348;  Prewett  r.  Trim- 
ble (Ky.),  17  S.  W.  Rep.  356.  The 
rule  stated  in  the  text,  however,  may 
not  apply  where  the  shareholder  has 
obtained  his  stock  in  the  open 
market,  and  not  from  the  company. 
Peek  V.  Gurney,  L.  R.  6  H.  L.  377. 
But  .see  Andrews  r  Mockford  [1S96], 
1  Q.  B.  372  (where  Peek  v.  Gurney  is 
distinguished),  and,  also,  New  York 
and  New  Haven  Railroad  Company 
V.  Schuyler,  34  N.  Y.  30;  Phelps  v. 
Wait,  30  Id.  78;  Suydam  v.  Moore,  8 
Barb.  358;  Bruff  r.  Mali,  36  N.  Y. 
200. 

<  Veazie  r.  AVilliams,  8  How.  134; 
Pennock's  Appeal,  14  Pa.  449: 
Staines  v.  Shore,  16  Id.  200,  Towle  v« 


CH.  II.] 


FRAUD. 


325 


to  be  more  strict  against  fraud  than  that  in  equity.  Where  the 
conditions  of  sale  contain  the  usual  provision  that  the  highest 
bidder  shall  be  the  purchaser,  courts  of  law  have  held  that  no 
bidding  whatever  on  behalf  of  the  vendor — even  by  a  single 
agent — is  allowable.  But  in  equity,  it  has  been  in  some  cases 
laid  down  as  the  rule,  that  a  vendor  may  authorize  a  person  to 
bid  for  liim  up  to  a  reserved  price,  so  as  to  prevent  the  property 
from  going  below  that  price. ^  But  the  present  inclination  of  the 
courts  is,  perhaps,  to  make  the  rule  in  ecjuity  conform  to  that  at 
law.-  If,  therefore,  the  vendor  does  not  wish  the  property  to  be 
sacrificed,  he  must  limit  it — in  which  case,  if  the  limit  is  not 
reached  by  bona  fide  bids,  the  subject  of  the  sale  may  be  with- 
drawn, 

■^210.  Fraud  on  owner  of  property  sold  at  auction. 

As,  on  the  one  hand,  a  sale  at  auction  may  be  fraudulent  as 
against  the  purchaser,  by  reason  of  the  enhancement  of  the 
price  by  means  of  fictitious  bids;  so,  on  the  other  hand,  it  may  be 
fraudulent  as  against  the  owner  of  the  property,  when  parties 
are  deterred  from  bidding  by  false  representations.  Thus,  the 
owner  of  property  sold  at  a  judicial  sale,  has  a  right  to  come 
into  equity  for  relief,  when  it  appears  that  a  purchaser  made  un- 
true representations  whereby  other  persons  were  prevented 
from  bidding,  and  by  which  the  property  was  obtained  at  an  un- 
dervalue.^ 

In  such  cases  the  purchaser  will  be  treated  as  a  trustee,  and 
cannot  retain  the  property  thus  fraudulently  acquired,  for  his 
own  benefit.'* 


Leavitt,  3  Foster,  360;  Woods  v. 
Hall,  1  Dev.  Eq.  411;  Trust  v.  Dela- 
plaine,  3  E.  D.  Smith,  219;  Kerr  on 
Fraud  and  Mistake,  225;  Bigelow  on 
Fraud,  145.  See,  also,  Faucett  v.  Cur- 
rier, 115  Mass.  20;  Shapira  v.  D'Arcy, 
180  Id.  377;  Williams  v.  Bradley,  7 
Heisk.  54;  Dimmock  v.  Hullett,  L.  R. 
2  Ch.  21;  Flannery  v.  Jones,  ISO  Pa. 
338. 

1  Davis  V.  Petway,  3  Head,  667. 
The  general  subject  is  discussed  in 
this  case,  and  puffing  is  disapproved; 
although  the  sale  under  consideration 
was  sustained. 


2  Mortimer  v.  Bell,  L.  R.  1  Ch.  12, 
13;  Scott  V.  Brown  [1892],  2  Q.  B. 
724,  and  l*'lannery  v.  Jones,  180  Pa. 
338.  See,  also.  Woodward  v.  Miller, 
2  Coll.  279. 

3  Cocks  V.  Izard,  7  Wall.  559; 
Carr  v.  Graham,  128  Ga.  622. 

<  See  Brown  v.  Dysingcr,  1  Rawle, 
408;  Cook  v.  Cook,  69  Pa.  443;  Sey- 
lar  V.  Carson,  Id.  81 ;  Bethell  v.  Sharp, 
25  111.  173;  Ryan  v.  Dox,  34  N.  Y. 
307;  Roach  v.  Hudson,  8  Bush,  410; 
Crumley  v.  Webb,  44  Mo.  444; 
Mackay  v.  Martin,  26  Tex.  57. 


326 


FRAUD. 


[part  II. 


So  also  it  may,  perhaps,  be  stated  as  a  general  rule  that  where, 
at  a  public  sale,  bidders  are  deterred  from  purchasing  by  a  decla- 
ration that  a  i^articular  buyer  is  acting  for  the  benefit  of  some 
party  beneficially  interested,  and  the  particular  buyer  is,  in  this 
way,  enabled  to  secure  the  })roperty,  he  will  be  held  as  a  trustee 
for  the  party  in  whose  favor  he  gave  it  out  that  the  purchase  was 
being  made.^  When,  however,  there  is  nothing  more  than  the 
breach  of  a  parol  agreement,  the  Statute  of  Frauds,  in  cases  of 
real  estate,  would  apply,  and  no  trust  which  could  be  enforced 
would  arise. ^ 

It  has  been  said  by  distinguished  authority  that,  "Upon 
analogous  principles,  agreements  whereby  parties  engage  not 
to  bid  against  each  other  at  a  public  auction,  especially  in  cases 
where  such  auctions  are  directed  or  required  by  law,  as  in  the 
cases  of  sales  of  chattels  or  other  property  on  execution,  are  held 
void;  for  they  are  unconscientious  and  against  public  policy, 
for  they  have  a  tendency  injuriously  to  affect  the  character  and 
value  of  sales  at  public  auction  and  to  mislead  private  confi- 
dence." ^  But,  in  some  cases,  the  question  is  treated  as  one  of 
actual  fraud;  and  it  has  been  held  that,  in  the  absence  of  such 
fraud,  the  arrangement  will  be  good."*  And  this  was  the  view 
taken  by  the  Supreme  Court  of  the  United  States.^  Where  there 
is  an  active  fraud  in  putting  in  fictitious  bids,  which  bids  are  in 
fact  not  competitive,  such  deceit  will  vitiate  the  transaction.^ 

The  true  doctrine,  perhajjs,  is  that  no  hard  and  fast  rule  can 
be  laid  down,  but  that  each  case  must  be  decided  according  to 


1  See  Hayman's  Appeal,  65  Pa. 
433;  Burnet  v.  Dougherty,  32  Id. 
371;  Beegle  v.  Wentz,  55  Id.  369; 
Faust  V.  Haas,  73  Id.  301;  Boynton 
V.  Housler,  Id.  453.  See,  also,  Mar- 
tin V.  Morris,  62  Wis.  418;  WoodrufT 
V.  Jabine  (Ark.),  15  S.  W.  Rep. 
830. 

2Kistler's  App(«al,  73  Pa.  398; 
Kimmel  v.  Smith,  117  Id.  183;  Sals-* 
bury  V.  Black,  119  Id.  200;  ante, 
§  80;  Davis  v.  Davis,  216  Pa.  228. 

3  Story's  Eq.  Jurisp.  §  293,  and 
cases  cited  in  notes.  See,  also, 
Slingluff  r.  Eckel,  24  Pa.  472;  Hays' 
Estate,  159  Id.  381;  Phelps  r.  Ben- 
son, 161  Pa.  418;  Crawford  t:  Mad- 
dux, 100  Cal.  222;  Boyle  v.  Adams,  50 


Minn.  255;  Kine  v.  Turner,  27  Oreg. 
356;  Goble  v.  O'Connor,  43  Neb.  49; 
Ralphsnyder  v.  Shaw,  45  W.  Va.  680; 
Bank  v.  Prager,  50  Id.  660;  Conway 
V.  Garden  City  Paving  Co.,  190  111. 
89;  Pomeroy's  Equity,  §  934;  Mans- 
field V.  Wallace,  217  111.  610. 

*  Oram  v.  Rothermel,  98  Pa.  300; 
Woodruff  V.  Warner,  175  Id.  302; 
Atcheson  v.  Mallon,  43  N.  Y.  147- 
151. 

5  Kearney  v.  Taylor,  15  How.  519; 
Hyer  v.  Richmond  Trac.  Co.,  168 
U.  S.  478. 

6  See  McMullen  v.  Hoffman,  174 
U.  S.  639-652,  where  the  whole  sub- 
ject is  examined  by  Mr.  Justice 
Peckham. 


II 


CH.  II.] 


FRAUD. 


327 


the  particular  facts;  and  that  agreements  among  creditors  or 
others  not  to  compete,  at  auctions,  will  be  deemed  fraudulent, 
or  otherwise,  according  to  the  intent  to  be  deduced  from  the 
surrounding  circumstances. 

211.  Matters  of  intention. 

The  representation  must  not  be  an  expression  of  intention 
merely.  A  man  has  no  right  to  rely  upon  what  another  says  he 
intends  to  do;^  unless,  indeed,  the  expression  of  intention  as- 
sumes such  a  shape  that  it  amounts  to  a  contract,  when,  of 
course,  the  party  will  be  bound  by  his  engagement  ^  and  for  the 
breach  of  which  the  other  side  has,  ordinarily,  an  adequate  rem- 
edy at  law.^  But  if  a  promise  is  made  with  no  intent  to  perform 
it,  and  merely  with  a  fraudulent  design  to  induce  action  under 
an  erroneous  belief,  or  if  a  representation  amounts  to  a  state- 
ment of  fact,  although  dependent  upon  future  action,  in  either 
case  there  is  ground  for  equitable  relief  ."* 

212.  Matters  of  law. 

A  false  representation  of  a  matter  of  law  is  no  reason  for  re- 
scinding a  contract,  because  every  person  is  supposed  to  know 
the  law ;  ^  although  in  some  exceptional  cases  relief,  where  mis- 


1  Feret  v.  Hill,  15  C.  B.  207;  Jorden 
V.  Money,  5  H.  L.  Cas.  185  (though 
see  the  dissenting  opinion  of  Lord  St. 
Leonards,  Id.  248,  249);  Citizens' 
Bank  v.  First  Nat.  Bank,  L.  R.  6  H. 
L.  .352;  Long  v.  Woodman,  58  Me.  49; 
Grove  v.  Hodges,  55  Pa.  519;  Leake 
on  Contracts,  182;  Maxon  v.  Gray, 
15  R.  I.  475;  A.  Landreth  Co.  v. 
Schevenel,  102  Tenn.  486;  Harring- 
ton V.  Rutherford,  .38  Fla.  321;  Shat- 
tuck  V.  Robbins,  68  N.  H.  565;  Ryan 
V.  Middlesborough  Town  Lands  Co., 
106  Ky.  181. 

2  Hammersley  v.  De  Biel,  12  CI. 
&  Fin.  45.  See,  also,  Maunsell  v. 
White,  4  H.  L.  Cas.  1056;  Caton 
V.  Caton,  L.  R.  2  H.  L.  127;  Newman 
7).  Smith,  77  Cal.  22;  Rorer  Iron  Co.  ?'. 
Trout,  83  Va.  397;  Day  7'..Fort  Scott 
Invest.  Co.,  153  111.  293;  Kerr  on 
Fraud  and  Mistake,  89;  Perry  on 
Trusts,  §  208. 


3  Murphy  v.  Murphy,  189  111.  ,360; 
Gardner  v.  Knight,  124  Ala.  273; 
Brand  v.  Power,  110  Ga.  522. 

<  Chicago,  etc.,  Cent.  Ry.  v.  Titter- 
ington,  84  Tex.  218;  Piggott  v.  Strat- 
ton,  Johns.  Ch.  359;  1  De  G.,  F.  &  J. 
49;  McCready  v.  Phillips,  56  Neb.  446; 
Sherrin  v.  Flinn,  155  Ind.  422.  And 
see  Kimball  v.  ^Etna  Ins.  Co.,  9 
Allen,  540.  A  false  statement  re- 
specting a  future  or  contingent  event 
is  not  such  fraud  as  will  constitute 
the  basis  of  an  action  of  deceit. 
Boulden  v.  Stilwell,  100  Md.  543. 

5  Kerr  on  Fraud  and  Mistake,  90; 
Leake  on  Contracts,  182.  See  Reed 
V.  Sidener,  32  Ind.  373;  Steamboat 
Belfast  ;•.  Boon,  41  Ala.  68;  Drake  o. 
Latham,  50  111.  270;  Fish  v.  Cleland, 
33  111.  243;  Upton  v.  Tribilcock,  91 
U.  S.  45;  Grant  v.  Grant,  56  Me.  573; 
Bigelow  on  Fraud,  9;  Dowdull  v. 
Ca  ,nody,  32  111.  App.  207. 


328 


FRAUD. 


[part  II. 


representations  of  law  have  been  made,  has  been  granted.* 
Where,  indeed,  there  is  a  mutual  mistake  in  regard  to  the  effect 
of  a  legal  instrument;  or  where  the  relations  of  the  parties  are 
such  that  the  injured  pai'ty  relies  upon  the  other,  the  rule  may  be 
different.^  But  the  relief  afforded  in  cases  of  this  kind  depends 
upon  other  heads  of  e(iuity — viz.,  upon  mistake,  or  upon  fraud 
arising  from  the  relation  of  the  parties,  the  former  of  which  has 
been  already  noticed.^  In  the  present  connection  the  rule  must 
be  stated  to  l)e,  that  misrepresentations  of  the  law,  apart  from 
other  considerations,  do  not  constitute  fraud  in  its  technical 
sense,  either  at  law  or  in  equity. 

213.   Suppressio  veri. 

It  has  been  already  stated  that  fraud  may  consist  in  silence 
as  well  as  in  actual  outspoken  misrepresentation.  The  sup- 
pressio  veri,  whenever  it  becomes  the  means  of  deceit,  is  re- 
garded with  disfavor  in  equity,  no  less  than  the  suygestio  falsi. 
It  is  very  true  that  a  man  is  not  always  obliged  to  speak  out. 
Under  ordinary  circumstances  a  vendor  and  a  purchaser  stand 
at  arms'  length,'*  and  the  former  is  not  obliged  at  law  or  in  equity, 
no  matter  what  the  rule  of  morality  may  be,  to  disclose  latent 
defects  in  the  subject-matter  of  the  sale;  nor  is  the  purchaser 
bound  to  inform  the  seller  of  advantages  known  only  to  him- 
self.^ Lord  Thurlow,  as  an  illustration  of  this  doctrine,  put  the 
case  of  a  man  buying  land  under  which  there  was  a  mine  known 
only  to  the  purchaser,  and  said  that  the  latter  was  not  bound 
to  disclose  his  knowledge.^     Singular  to  say,  such  cases  have 


1  See  Brovvn  v.  Rice,  26  Gratt.  467; 
Moreland  v.  Atchison,  19  Tex.  303; 
Allen  V.  Frawley,  106  Wis.  638. 

2  Peter  v.  Wright,  6  Ind.  183; 
Shaeffer  v.  Sleade,  7  Blackf.  178; 
Cooke  V.  Nathan,  16  Barb.  342;  Lang- 
staffe  V.  Fenwick,  10  Ves.  405;  Cor- 
nish V.  Johns,  74  Ark.  231. 

sSuprn,  §  185. 

■»  But  the  relation  may,  under  pe- 
culiar circumstances,  be  one  of  confi- 
dence. Zahn  r.  McMillin,  179  Pa. 
146;  Murray  ?'.  Tolman,  162  111.  417; 
1  Perry  on  Trusts,  179. 

^  See  Laidlaw  v.  Organ,  2  Wheat. 
178;  Kintzing  v.  McElrath,  5  Pa.  467; 


Hanson  v.  Edgerly,  29  N.  H.  343; 
Smith  V.  Countryman,  30  N.  Y.  655; 
Fisher  v.  Budlong,  10  R.  I.  525;  Had- 
ley  V.  Clinton  Importing  Co.,  13  Ohio 
St.  502;  Williams  v.  Spurr,  24  Mich. 
335;  Law  v.  Grant,  37  Wis.  548; 
Mitchell  r.  McDougall,  62  111.  498; 
Frenzel  v.  Miller,  37  Ind.  1;  Penny- 
backer  ('.  Laidley,  33  W.  Va.  624. 
But  in  Missouri  see  Cecil  v.  Spurger, 
32  Mo.  462;  McAdams  v.  Cates,  24 
Id.  223;  Barron  v.  Alexander,  27  Id. 
530;  and  in  Mississippi  see  Patter- 
son V.  Kirkland,  34  Miss.  423,  431. 
See  Jones  v.  Stewart,  62  Neb.  207. 
8  Turner  v.  Harvey,  Jac.  169,  178. 


CH.  II.] 


FRAUD. 


329 


actually  arisen  in  this  country,  and  the  dictum  of  Lord  Thur- 
low  has  been  followed.^ 

If,  however,  a  man  professes  to  describe  the  article  which  he 
is  selling,  he  must  describe  everything  that  is  material.  If  he 
undertakes  to  tell  the  truth,  it  will  not  do  for  him  to  tell  only 
part  of  the  truth.^  Moreover,  where  a  seller  has  held  out  the 
existence  of  a  material  state  of  facts  as  an  inducement,  and 
knows  that  the  proposed  buyer  is  acting  under  that  induce- 
ment, he  is  bound  to  advise  the  buyer  of  any  change  which  has 
occurred  pending  the  negotiations,  and  which  has  come  to  his 
knowledge.^ 

Nor  can  a  man  remain  silent  if  it  is  his  duty  to  speak.  Sup- 
pression of  the  truth  in  such  a  case  is  a  fraud."*  Familiar  illus- 
trations of  this  principle  are  found  in  the  contracts  of  insurance 
and  suretyship,  where  from  the  situation  of  the  parties  the  duty 
of  disclosure  is  greater  than  in  ordinary  cases  ;^  and  under  the 
same  principle  fall  those  cases  in  which  a  legatee  has  been  held  to 
be  a  trustee  because  he  has  by  silent  acquiescence  encouraged 
a  testator  to  make  a  bequest  to  him  with  the  belief  that  it  will  be 
used  for  the  benefit  of  another.*^ 

While  it  is  true,  therefore,  that  the  principle  stated  by  Lord 
Thurlow  is  widely  recognized,  and  the  buyer  is  not  bound  to  give 
the  seller  any  information,  yet  on  the  other  hand  he  must  not  use 
the  slightest  artifice  to  mislead  him.  If  he  does,  the  principle 
will  not  be  applied.^ 


1  Harris  v.  Tyson,  24  Pa.  347;  Wil- 
liams V.  Spurr,  24  Mich.  .33.5.  But 
see  Williams  v.  Beazley,  3  J.  J. 
Marsh.  578.  Consult  Law  v.  Grant, 
37  Wis.  548;  Bigelow  on  Fraud,  33. 

2  Kerr  on  Fraud  and  Mistake,  91, 
92;  Van  Houten  v.  Morse,  162  Mass. 
414;  Aaron's  Reefs  v.  Twiss  [1896], 
App.  Cas.  273. 

3  Loewer  v.  Harris,  14  U.  S.  App. 
615. 

*  See  Young  v.  Bumpass,  1  Freem. 
Ch.  241;  Paddock  v.  Strobridge,  29 
Vt.  470,  477;  Carr  v.  Nat.  Bank  and 
Loan  Co.,  167  N.  Y.  375;  Rogers  v. 
Thornton,  101  Ky.  650;  Holmes  v. 
Martin,  123  Mich.  155;  Oliver  v. 
Oliver,  118  Ga.  362;  Kerr  on  Fraud 


and  Mistake,  95;  Leake  on  Contracts, 
184. 

5  See  Carter  v.  Boehm,  3  Burr. 
1905;  1  Sm.  Lead.  Cas.  791,  note 
(9th  ed.);  notes  to  Locke  v.  Am.  Ins. 
Co.,  2  Am.  Lead.  Cas.  926;  Wells, 
Fargo  &  Co.'s  Express  v.  Walker,  9 
New  Mex.  170;  Leake  on  Contracts, 
199;  Perry  on  Trusts,  §  179. 

8  0'Hara  v.  Dudley,  95  N.  Y.  403; 
Amherst  Coll.  r.  Ritch,  151  N.  Y. 
282;  Wallgrave  v.  Tebbs,  2  K.  &  J. 
313. 

7  Stackpole  v.  Hancock,  40  P'la. 
362.  And  see  Thayer  v.  Knote,  59 
Kan.  181,  for  a  case  in  which  the 
seller  was  held  entitled  to  have  the 
contract  rescinded. 


330 


FRAUD. 


[part  II. 


214.  Knowledge  of  the  tnilli  or  falsehood  by  party  niak- 
iiig  the  representations  ;  chissitication  of  cases  on  this  subject. 

The  second  of  the  requisites  necessary  to  render  a  representa- 
tion fraudulent  was  foi'nierly  said  to  be,  that  it  must  be  false 
within  the  knowledge  of  the  party  making  it.  ^  But  this  state- 
ment is  not,  under  the  more  modern  authorities,  entirely  accu- 
rate; for  a  man,  it  is  said,  must  be  held  responsible  for  asserting 
that  which  he  does  not  know  to  be  true,  as  much  as  if  he  de- 
signedly asserted  that  which  he  knew  to  be  false,  provided  that 
the  assertion  has  the  effect  of  deceiving  the  other  party .^ 

Where  a  man  knows  that  what  he  says  is  untrue,  the  case  is, 
of  course,  a  very  plain  one.  He  must  be  answerable,  even  if  the 
assertion  of  the  untruth  were  made  with  good  intentions  and 
without  designing  any  frautl.^  The  difhcult  cases  are  those  in 
w  hich  the  party  does  not  know  that  his  representations  are  un- 
true.   Several  different  classes  of  cases  may  arise  under  this  head. 

Thus,  in  the  first  place,  a  party  may  be  in  entire  ignorance 
whether  his  assertion  is,  in  point  of  fact,  true  or  false.  Here  the 
party  may,  in  one  sense,  be  said  not  to  know  that  his  assertion  is 
false,  for  non  constat  but  that  it  may  turn  out  to  be  true.  But 
it  is  quite  plain  that  a  man  has  no  right  wilfully  to  assert  as  a 
fact  that  of  which  he  is  in  entire  ignorance.  Such  reckless  as- 
sertions ought  to  render  him  responsible  both  in  morals  and  law. 
A  man  nuist  believe  the  truth  of  what  he  says.  It  is,  in  law,  a 
wilful  falsehood  for  a  man  to  assert  of  his  own  knowledge  a  matter 
of  which  he  has  no  knowledge,  and  as  to  which  he  can,  therefore, 
have  no  real  belief."* 


1  See  Proctor  v.  Spatley,  78  Va. 
2')4,  where  the  old  rule  is  attempted 
to  be  upheld. 

2  Pulsford  V.  Richards,  17  Beav.  87; 
Redgrave  v.  Hurd,  20  Ch.  D.  13; 
iloujjh  V.  Richardson,  .3  Story,  659; 
Smith  V.  Richards,  13  Pet.  26;  Ben- 
nett V.  Judson,  21  N.  Y.  238;  Marsh 
V.  Falker,  40  Id.  562;  Allen  r.  Hart, 
72  111.  104;  Converse  v.  Blumrich,  14 
\lich.  109,  123;  Glasscock  v.  Minor, 
1 1  .Mo.  655;  Hunt  v.  Moore,  2  Pa. 
1  ).'.;  Taymon  v.  Mitchell,  1  Md.  Ch. 
49o;  Reese  v.  Wyman,  9  Ga.  439; 
Turnbull  v.  Gadsden,  2  Strob.  Eq.  14; 
Lewis  V.  McLemore,  10  Yerg.  206; 
Thompson   i'.  Lee,  31   Ala.  292;  Os- 


wald V.  McGehee,  28  Miss.  340;  York 
V.  Gregg,  9  Tex.  85;  Joliffe  v.  Baker, 
11  Q.  B.  Div.  271;  Hill  on  Trustees, 
226  (4th  Am.  ed.);  Leake  on  Con- 
tracts, 188,  189;  Lowe  v.  Trundle,  78 
Va.  65;  Weise  v.  Grove,  123  la.  585. 

3  Polhill  V.  Walter,  3  B.  &  Ad.  114; 
Bankhead  v.  AUoway,  6  Cold.  75; 
Barnes  v.  Union  Pac.  Ry.  Co.,  12 
U.  S.  App.  1;  27  Id.  421;  Wheeler  v. 
Baars,  33  Fla.  696;  Hamlin  v.  Abell, 
120  Mo.  188;  Robertson  v.  Parks,  76 
Md.  118;  North  Western  Life  Ins.  Co. 
r.  Montgomery,  116  Ga.  799;  Leake 
on  Contracts,  187. 

*  Hazard  v.  Irwin,  18  Pick.  95; 
Stone  V.  Denny,  4  Mete.  151;  Kerr  on 


CH.  II.] 


FRAUD. 


331 


Again,  a  man  may  honestly  believe  that  what  he  assei'ts  is 
tnie,  when,  in  point  of  faot,  it  may  turn  out  to  l)e  otherwise. 
The  party  in  such  a  case  is  not  liable.  No  man  can  be  held  re- 
sponsible for  a  misrepresentation  made  through  an  honest  mis- 
take.^ No  fraudulent  intention  can  be  imputed  in  such  a  case.^ 
If,  however,  he  afterwards  discovers  the  untruth,  he  must  not 
allow  the  other  party  to  act  on  the  belief  that  no  mistake  has 
been  made.    To  do  so  would  be  fraud. ^ 

It  is  to  be  observed,  moreover,  that  whether  a  man  has  or  has 
not  reasonable  grounds  for  believing  what  he  asserts,  is  not  the 
question.  The  true  criterion  is,  doe'ri  he  actually  believe.  "The 
existence  or  non-existence  of  reasonable  grounds  is  a  fact,  from 
which  actual  belief  may  be  inferred  or  not,  as  the  case  may  be; 
and  the  unreasonableness  of  the  alleged  belief  is  evidence  to  dis- 
prove its  real  existence — nothing  more."  '* 

This  was  the  language  used  in  Derry  v.  Peek,^  decided  by  the 
House  of  Lords  in  1889.  The  case  was  an  action  of  deceit.  The 
defendants  were  the  directors  of  a  tramway  company,  and  had 
issued  a  prospectus  in  which  it  was  stated  that  the  company  had 
a  right  to  use  steam  or  mechanical  motive-power  instead  of 
horses.  As  a  matter  of  fact,  the  incorporating  Act  only  ]jro- 
vided  that  such  power  might  be  used  with  the  consent  of  the 
Board  of  Trade.  On  the  faith  of  the  prospectus  the  plaintiff  took 
shares.  The  board  subsequently  refused  the  necessary  consent, 
and  the  company  was  wound  up.    The  action  was  dismissed  by 


Fraud  and  Mistake,  54.  See,  also, 
remarks  of  Watkins  Williams,  J.,  in 
Joliffe  V.  Baker,  11  Q.  B.  Div.  271, 
and  Florida  v.  Morrison,  44  Mo.  App. 
529. 

1  See  Fisher  v.  Mellen,  103  Mass. 
503;  Cabot  v.  Christie,  42  Vt.  12(i; 
Erie  City  Iron  Works  v.  Barber,  106 
Pa.  139;  Schramm  v.  Haupt,  38  Minn. 
379;  Kerr  on  Fraud  and  Mistake,  57. 
That  class  of  cases  must  be  put  out  of 
consideration,  in  which  the  mistake 
is  one  which  relates  to  the  substance 
of  the  contract.  Thus,  if  a  man  were 
to  sell  a  horse  under  the  honest  be- 
lief that  he  was  alive  at  the  time  of 
the  sale,  when,  in  point  of  fact,  it 
should  afterwards  turn  out  that  the 
horse  was  dead,  the  purchaser  wouKl, 


of  course,  be  entitled  to  have  the  con- 
tract rescinded. 

2  Leake  on  Contracts,  187;  and  see 
Boddy  r.  Henry,  113  Iowa,  402. 
See,  however,  Bankhead  v.  AUoway, 
6  Cold.  75. 

»  Reynell  v.  Sprye,  1  De  C,  M.  & 
G.  660;  Loewer  v.  Harris,  14  U.  8.  A. 
615;  Kerr  on  Fraud  and  Mistake, 
67. 

*  Derry  v.  Peek,  14  App.  Cas.  337; 
Angus  I'.  Clifford  [1891],  2  Ch.  449. 
See  Griswold  i\  Gebbie,  12G  Pa.  353, 
and  the  remarks  of  Hare,  P.  J., 
quoted  in  the  opinion  of  the  Supreme 
Court  on  page  364.  See,  also, 
Glasier  v.  Rolls,  42  Ch.  D.  436,  and 
Lamberton  v.  Dunham,  165  Pa.  129. 

5  14  App.  Cas.  337. 


332 


FRAUD, 


[part  II. 


tho  Judge  (Mr.  Justice  Sterling)  before  whom  the  cause  was  first 
heard.  His  ruHng  was  reversed  by  the  Court  of  Appeal,  and  the 
judgriierit  of  that  tribunal  was,  in  turn,  reversed  by  the  House  of 
Lords.  The  case  has  been  much  criticised,  and  led  to  the  passage 
of  a  statute  by  which  the  rule  laid  down  was  modified ;  *  but  the 
riding  of  the  House  of  Lords  would  seem  to  be  based  upon  a 
distinction  between  the  action  of  deceit  (or  what  is  the  same 
thing,  a  bill  in  ecjuity  founded  on  actual  fraud)  and  a  bill  foi'  the 
rescission  of  a  contract,  which  is  sound.  Moral  wrong  would 
appear  to  be  necessary  in  the  one  case,  but  not  in  the  other;  and 
as  far  back  as  1850,  the  same  line  of  thought  would  seem  to  have 
been  indicated  by  Chief  Justice  Gibson  in  Bokee  v.  Walker, - 
where  he  said:  "There  can  be  no  constructive  do/u.s  malus;  for 
where  there  is  actual  fraud  there  is  no  room  for  construction  or 
legal  direction.  In  an  action  for  deceit,  the  jury  have  to  deal 
with  a  question  of  good  faith;  and  if  they  are  satisfied  the 
defendant  believed  Jtis  oxen  story,  it  is  their  duty  to  find  in  his 
favor."  ^ 

But  again,  a  party  may  be  held  responsible,  even  for  an  honest 
mistake,  if  the  duty  of  knowing  the  truth  is  for  any  reason  cast 
upon  him.''  In  such  a  case,  mistake,  ignorance,  or  forgetfulness 
is  no  excuse.^ 

In  all  of  these  cases,  the  question  is  whether  a  fraudulent  in- 
tent is  to  be  imputed  to  the  person  making  the  representation. 

If  a  person  asserts  what  he  does  not  believe  to  be  true,  fraud 
is  presumed  in  law,  even  if  no  actual  fraud  was  intended.** 

If  the  assertion  is  honestly  believed  to  be  true,  no  fraudulent 
intent  will  be  presumed 


1  53  and  54  Vict.,  c.  64. 

2  14  Pa.  142. 

3  See,  also,  Graham  v.  Hollinger,  46 
Pa.  55,  and  Dilworth  v.  Bradner,  85 
Id.  2.38. 

*  .Vnd  the  duty  qf  knowing  the 
truth  may,  under  certain  circum- 
stances, be  presumed.  See  language 
of  Harlan,  J.,  in  Lehigh  Zinc  &  Iron 
Co.  V.  Bamford,  150  U.  S.  673;  (Jerner 
V.  Mosher,  58  Neb.  135,  and  Wilson  v. 
Carpenter,  91  Va.  183. 

5  Burrowes  v.  Lock,  10  Yes.  470; 
Low    V.    Bouverie   [1891],   3  Ch.   82; 


Babcock  i'.  Case,  61  Pa.  4.30;  Kerr  on 
Fraud  and  Mistake,  69. 

*  A  person  who  makes  representa- 
tions of  material  facts,  assuming  or 
intending  to  convey  the  impression 
that  he  has  actual  knowledge  of  the 
existence  of  such  facts,  when  he  is 
conscious  that  he  has  no  such  knowl- 
edge, is  as  much  responsible  for  the 
injurious  consequences  of  such  rep- 
resentations, to  one  who  believes  and 
acts  upon  them,  as  if  he  had  actual 
knowledge  of  their  falsity.  Har- 
lan, J,  in  Lehigh  Zinc  &  Iron  Co.  v. 
Bamford,  150  U.  S.  665,  673. 


CH.  II.] 


FRAUD. 


333 


If  it  is  the  duty  of  the  party  to  know  the  truth,  a  misrepre- 
sentation will  be  presumed  to  be  fraudulent.^ 

Moreover,  it  must  be  remembered  that  a  contract  may  be 
rescinded  on  the  ground  of  mutual  mistake  induced  by  repre- 
sentations honestly  made,  although  the  fact  that  the  party 
making  the  representations  believed  them  to  be  true  might  pre- 
clude a  recovery  in  an  action  of  deceit.^ 

215,  Representation  must  be  relied  on. 

The  third  requisite  necessary  to  render  a  misrepresentation 
fraudulent,  is  that  it  must  be  reasonably  relied  on  by  the  other 


1  See  Bigelow  on  Fraud,  56  et  seq. 
The  following  extracts  from  the 
opinion  of  Lord  Chancellor  Her- 
chell  in  Derry  v.  Peek,  14  App.  Cas. 
337,  may  be  useful: 

"I  think  it  important"  (said  the 
Lord  Chancellor)  "that  it  should  be 
borne  in  mind  that  such  an  action 
(deceit)  differs  essentially  from  one 
brought  to  obtain  rescission  of  a  con- 
tract on  the  ground  of  misrepresenta- 
tion of  a  material  fact.  The  princi- 
ples which  govern  the  two  actions 
differ  widely.  Where  rescission  is 
claimed,  it  is  only  necessary  to  prove 
that  there  was  misrepresentation; 
then,  however  honestly  it  may  have 
been  made,  however  free  from  blame 
the  person  who  made  it,  the  contract 
having  been  obtained  by  misrep- 
resentation cannot  stand.  In  an  ac- 
tion of  deceit,  on  the  contrary,  it  is 
not  enough  to  establish  misrepresen- 
tation alone;  it  is  conceded  on  all 
hands  that  something  more  must  be 
proved  to  cast  liability  upon  the  de- 
fendant, though  it  has  been  a  matter 
of  controversy  what  additional  ele- 
ments are  requisite." 

Again,  Lord  Herschell  said:  "I 
think  the  authorities  establish  the 
following  propositions:  First;  In  or- 
der to  sustain  an  action  of  deceit, 
there  must  be  proof  of  fraud,  and 
nothing  short  of  that  will  suffice. 
Secondly;  Fraud   is   proved   when   it 


is  shown  that  a  false  representation 
is  made  (1)  knowingly,  or  (2)  with- 
out belief  in  its  truth,  or  (3)  reck- 
lesslyj  careless  whether  it  be  true  or 
false.  Although  I  have  treated  the 
second  and  third  as  distinct  cases, 
I  think  the  third  is  but  an  instance  of 
the  second,  for  one  who  makes  a 
.statement  under  such  circumstances 
can  have  no  real  belief  in  the  truth  of 
what  he  states.  To  prevent  a  false 
statement  being  fraudulent,  there 
must,  I  think,  always  be  an  honest 
belief  in  its  truth.  And  this  proba- 
bly covers  the  whole  ground,  for  one 
who  knowingly  alleges  that  which  is 
false  has  obviously  no  such  honest 
belief:  Thirdly;  If  fraud  be  proved, 
the  motive  of  the  person  guilty  of  it 
is  immaterial.  It  matters  not  that 
there  was  no  intent  to  cheat  or  injure 
the  person  to  whom  the  statement 
was  made." 

The  circumstance  that  a  person 
who  made  an  untrue  statement 
could  by  the  exercise  of  ordinary  care 
have  ascertained  that  the  statement 
was  false  does  not  constitute  in  itself 
such  fraud  as  will  support  an  action 
of  deceit.  Cahill  v.  Applegarth,  98 
Md.  493. 

2  See  the  remarks  of  Lord  C'han- 
cellor  Herschell  quoted  in  the  pre- 
ceding note.  See,  also,  Blygh  v. 
Samson,  137  Pa.  376. 


I 


334 


FRAUD. 


[part  II. 


party,  and  this  obviously  includes  two  subdivisions;  first,  the 
party  must  have  a  rigJit,  as  a  reasonable  being,  to  rely  upon 
the  representation;  and,  second,  he  must,  in  point  of  fact,  so 
rely  upon  it.^  No  man,  for  example,  would  be  heard  to  com- 
])lain  of  a  representation  so  wildly  extravagant  and  so  palpably 
absurd  and  false  that  no  reasonable  human  being  could  possil)ly 
be  deceived  thereby;  ^  and  the  same  rule  has,  with  justice,  been 
apf)lied  to  statements  of  a  vague  and  uncertain  character.^ 
Nor  coidd  a  contract  be  rescinded  for  a  misrepresentation,"  if 
its  falsity  were  known  to  the  party  to  whom  it  was  made. 

If  the  party  to  whom  the  representation  is  made  resorts  to 
infjuiries  pn  his  own  account,  and  shows  by  his  conduct  that 
he  relies  upon  them,  he  cannot  complain  of  a  misrepresentation.^ 
A  fortiori,  if  he  was  actually  aware  of  the  tme  state  of  the  case — 
for  then  he  was  not  deceived."^  And  a  man  is  bound  to  make  use 
of  the  means  of  information.^  But  if  the  parties  do  not  deal 
upon  e(iual  terms  (as  if  one  has  better  means  of  knowledge  than 
the  other),  or  if  any  artifice  is  used  for  the  purpose  of  preventing 
inoiuiry,  or  if  they  deal  on  the  basis  of  trust  and  confidence,  the 
transaction  will  be  fraudulent/ 


'  (larrison  v.  Teclinic.  Electrical 
Works,  59  N.  J.  Eq.  440;  Youle  r. 
Fosha,  76  Kan.  20. 

2  Sec  opinion  of  Shipley,  .1.,  in  Irv- 
ing ".  Thomas,  18  Me.  418,  424,  and 
Trammell  v.  Ashworth,   99  Va.   646. 

•*  Halls  7^  Thompson,  1  Sm.  &  M. 
443;  Savage  v.  Jackson,  19  Ga.  ;305. 
But  he  has  a  right  to  rely  upon  a 
'positive  statement  of  fact.  Perry  ?'. 
Rogers,  62  Neb.  898. 

i  .\tt\vood  V.  Small,  6  CI.  &  Fin. 
2.32,  236;  Jennings  v.  Brought  on,  17 
Beav.  234;  5  De  (I.,  M.  &  G.  126, 
136;  Clark  v.  Everhart,  63  Pa.  347. 
See,  also,  Tindall  r.  Harkinson,  19 
Ga.  448;  Bell  v.  Henderson,  6  How. 
(Miss.)  311;  (Jlasscock  r.  Minor,  11 
Mo.  655;  Yeates  r.  Pryor,  11  Ark.  58; 
Pratt  V.  Philbrook,  33  .Me.  17;  Wimer 
V.  Smith,  22  Oreg.  469;  Buxton  v. 
Jones,  120  Mich.  522;  West  End  Co. 
V.  Claiborne,  97  Va.  734;  Garrison 
r.  Tcchnic.  Elec.  Works,  59  N.  J.  Eq. 
440.    See  Redgrave  v.  Kurd,  20  Ch. 


D.  13,  for  an  examination  of  this 
question  and  for  an  explanation  of 
Attwood  V.  Small. 

5  Hough  ?'.  Richardson,  3  Story, 
659;  Veasey  v.  Doton,  3  Allen,  380; 
Kerr  on  Fraud  and  Mistake,  75  et  seq. 
See,  also,  Winter's  Appeal,  61  Pa. 
307,  and  Parker  v.  Hayes,  39  N.  J. 
Eq.  469. 

6  Wright  V.  Gully,  28  Ind.  475; 
Jones  V.  Rush,  156  Mo.  364;  Martin 
r.  Harwell,  115  Ga.  156;  Clajk  v. 
Everhart,  63  Pa.  347;  Brown  v. 
Leach,  107  Mass.  364. 

7  See  Mead  v.  Bunn,  32  N.  Y, 
275;  Gammill  v.  Johnson,  47  Ark 
335;  Edelman  r.  Latshaw,  180  Pa 
424;  Ray  v.  Baker,  165  Ind.  74 
Rohrof  V.  Schulte,  154  Id.  183; 
Clinkenbeard  i\  Weatherman,  157 
Mo.  105;  Dean  v.  Ross,  178  Mass.  3tt7; 
Watson  ?;.  Brown,  113  Iowa,  308; 
Hunt  r.  Barker,  22  R.  I.  18;  McGhee 
V.  Bell,  170  Mo.  121;  David  v.  Moore, 
46  Oreg.  148. 


CH.  II.]  FRAUD.  335 

216.  Eepresentation  must  be  material;  dolus  dans  locum 

co/ifracfui. 

The  last  requisite  to  a  fraudulent  representation  is  that  it 
must  furnish  a  substantial  inducement  to  the  contract ;  in  other 
words,  it  must  be  material.  In  the  language  of  the  civil  law,  it 
must  be  dolus  dans  locum  contradui.  The  test  is  whether  the 
party  would  have  entered  into  the  contract  if  the  fraudulent 
representation  had  not  been  made.^ 

But  trifling  and  inmiaterial  misrepresentations  will  not  in- 
duce a  court  of  eciuity  to  interfere.-  Thus,  in  a  case  in  Iowa 
representations  were  made  in  reference  to  a  patent  right,  which 
was  the  subject  of  a  sale,  in  a  certain  particular.  It  turned  out 
that  the  representation  was  untrue,  but  that  the  value  of  the 
invention  was  not,  on  that  account,  materially  affected;  and 
there  was  no  evidence  that  the  purchaser  was  influenced  thereby. 
It  was  held  that  the  purchaser  was  not  entitled  to  have  the  con- 
tract set  aside. ^ 

217.  Party  deceived  must  be  injured;  representations  by 
agents. 

The  definition  of  actual  fraud  already  given  is,  that  it  is  an 
artifice  by  which  a  person  is  deceived  to  his  disadvantage.  The 
emphasis  upon  the  last  word  in  the  definition  indicates  that  one 
other  element  of  fraudulent  misrepresentation  yet  remains  to  be 
noticed,  viz.,  that  the  party  complaining  must  have  been  in- 
jured thereby."*  Fraud  without  damage  is  no  ground  for  relief 
at  law  or  in  ec]uity.^  But  any  damage,  however  small,  will  be 
enough  to  set  the  court  in  motion.® 

1  Pulsford  V.  Richards,  17  Beav.  B.  Mon.  19;  Garrison  v.  Technic. 
87,  96;  Arnison  v.  Smith,  41  Ch.  D.  Elec.  Works,  59  N.  J.  Eq.  440;  Perry 
34<S;  Morris  Canal  Co.  v.  Emmett,  9       on  Trusts,  §  174. 

Paige  Ch.  168;  Levick  v.  Brotherline,  ^  Percival  v.  Harger,  40  la.  286. 

74   Pa.    157;  Masterton   v.   Beers,   6  <  See  Wells  v.  Waterhouse,  22  Me. 

Robertson,    368;     1    Sweeney,    406;  131;    Branham    r\    Record,    42    Ind. 

Bryan   v.   Hitchcock,   43   Miss.   531;  181;  Rogers  v.  Higgins,  57  111.  244; 

Klopenstein  v.  Mulcahy,  4  Nev.  296;  Lindsey    v.    Lindsey,    34    Miss.    432; 

Daniel  v.  Mitchell,  1  Story,  172;  Per-  Taylor  v.  Guest,  58  N.  Y.  262;  Savoie 

cival  V.  Harger,  40  la.  286;  Morris  v.  v.  Meyers,  40  La.  Ann.  677;  Bigelow 

Posner,  111  Iowa,  335;  2  Parsons  on  on  Fraud,  85;  Provident  Trust  Co.  v. 

Contracts,  769;   Kerr  on  Fraud   and  Mcintosh,  68  Kan.  452. 
Mistake,  73,  74.  s  Clarke  v.  White,  12  Pet.  178;  Ab- 

2  See  Geddes  v.  Pennington,  5  bey  v.  Dewey,  25  Pa.  413;  Marr's 
Dow.  159;  Winston  v.  Gwathmey,  8  Appeal,   78  Id.   69;  Kerr  on  Fraud 

« Smith  V.  Kay,  7  H.  L.  Cas.  750,  775. 


3o6  FRAUD.  [part  II. 

It  iiiiist  bo  renienibenHl,  in  considering  all  the  rules  in  regard 
to  misrepresentation,  that,  although  a  misrepresentation  is  usu- 
ally by  words,  it  is  not  always  so,  and  that  deceit  by  acts  will  be 
an  e(iually  good  ground  for  n>lirf.'  And  it  must  also  be  remem- 
bered that  the  rules  above  discussed  are  not  to  be  rigidly  adhered 
to,  where  to  do  so  would  be  to  allow  fraud  to  go  unpunished. 
Equity,  as  already  stated,  will  redress  fraud  in  whatever  shape  it 
may  appear,  and  any  misrepresentation  amounting,  in  the  eyes 
of  a  chancellor,  to  a  fraud  will  induce  the  court  to  act.^ 

If  false  and  fraudulent  representations  are  made  by  an  agent, 
the  princi])al,  although  he  be  innocent  of  the  fraud,  cannot  de- 
rive any  benefit  from  the  transaction  founded  on  such  misrepre- 
sentation.'"^  He  must  either  i-epudiate  the  whole  transaction,  or, 
if  he  adopts  it,  he  nmst  be  answerable  for  his  agent's  conduct;  ^ 
for  where  once  a  fraud  has  been  committed  not  only  is  the  person 
who  connnitted  the  fraud  precluded  from  deriving  any  benefit 
from  it,  but  every  innocent  })erson  is  so  likewise,  unless  he  has 
innocently  ac(iuired  a  subsecjuent  interest.''*  And,  on  the  other 
hand,  under  some  circumstances  a  party  who  has  been  induced 
to  enter  into  an  agreement  by  the  misrepresentations  of  an  agent, 
is  entitled  to  have  the  contract  rescinded.  Thus,  where  sub- 
s('rij)tions  to  the  capital  stock  of  a  company  have  been  induced 
by  the  fraudulent  re])resentations  or  statements  of  an  agent  ap- 
pointed to  obtain  subscriptions,  they  may  be  avoided  by  the 
subscribers.® 

218.   Trustees  ex  vialefido. 

Before  leaving  the  sul)je<*t  of  fraud  which  arises  from  facts  and 

and   Mistake,  94.     But  see  Brett  v.  Chamberlin,  31   N.  Y.  611;  Concord 

Cooney,  75  ('onn.  ^Jo.S.  Bank  x\  (Jregg,  14  N.  H.  331 ;  Kerr  on 

'  Crawshay  r.  Thompson,  4  M.  &  Fraud  and  Mistake,  111. 

G.  387.    See  McC'ull  v.  Davis,  56  Pa.  ••See  Fitzsimmons  v.  Joslin,  21  Vt. 

435;  Kerr  on  Tnjimctions,  474.  129.    The  case  of  Cornfoot  v.  Fowkc, 

2  See    Kuelkanip    r.    Hidding,    31  6   Mees.   &   Wels.   358,   can   scarcely 
Wis.  503.  now  be  considered  law.    Sec  Knappen 

3  See  remarks  of  Lord  Westbury  in  r.  Freeman,  47  Minn.  491. 

Xew  Brunswick  Railway  Co.  r.  Cony-  5  Scholefield  v.  Templor,  .Johns.  Ch. 

t)ear(',  9  II.  L.  ('as.  72().  and  by  Lord  155;  Hartopp  v.  Hartopp,  21   Beav. 

Cranworth,    Id.    739;    and    of    Lord  2.59. 

Kingsdown  in  Bristow  v.  \\'hitmore,  ^  Crossman  v.  Penrose  Ferry  Bridge 

9  H.  L.  Cas.  418.    See,  also,  Mundorff  Co.,  26  Pa.  69.     See,  also,  Custar  v. 

V.  Wickcrsham,  6;>  Pa.  S9;  Mcycrhoff  Titusville  Gas  and  Water  Co.,  63  Id. 

V.    Daniels,    173    Id.    555;    Elwell    v.  385. 


CH.  II.] 


FRAUD. 


337 


circumstances  of  imposition,  notice  must  be  taken  of  a  class  of 
cases  in  whicii  the  effect  of  the  fraud  has  been  held  to  be  to 
create  a  trust — the  party  committing  the  fraud  being  termed  a 
trustee  ex  malejicio;  ^  and  such  a  trust  will  arise  in  spite  of  the 
Statute  of  Frauds,  or,  to  speak  more  correctly,  the  Statute  will 
not  be  held  to  apply  to  cases  of  that  description. 

It  has  been  already  said,  in  discussing  the  nature  of  resulting 
trusts,^  that  where  no  money  is  advanced  by  the  beneficial  owner, 
and  there  is  nothing  more  in  the  transaction  than  is  implied 
from  the  violation  of  a  parol  agreement,  equity  will  not  decree 
the  purchaser  to  be  a  trustee.''  This  is  true  where  there  is  no 
fraud;  but  not  where  there  is  fraud."*  In  the  latter  case,  a  con- 
structive trust  will  arise  in  favor  of  the  party  to  whom  the  parol 
promise  has  been  made.  Thus,  in  Cook  v.  Cook,^  J.'s  land  being 
about  to  be  sold  by  the  sheriff,  he  asked" P.  to  buy  it  for  him.  P. 
agreed  to  do  so,  and  informed  other  bidders  at  the  sale  of  the 
arrangement,  and  thereby  induced  them  to  desist  from  bidding. 
It  was  held  that  he  took  the  property  as  trustee  for  J.^  So,  also, 
where  a  testator  devised  real  estate  to  his  daughter  by  her  per- 
suasion and  under  her  promise  that  on  her  death  one-half  of  it 
should  pass  to  the  children  of  her  sister,  it  was  held  that  a  trust 
ex  malejicio  arose.''    Other  instances  of  the  rule  may  be  found  in 


iSee  ante,  §91;  Wingerter  v. 
Wingerter,  71  Cal.  105;  Piper  v. 
Hoard,  107  N.  Y.  73;  Angle  v. 
Chicago,  St.  Paul,  etc.,  Ry.,  151 
U.  S.  1-26;  Lockhart  v.  Leeds,  195 
U.  S.  436. 

'^  Ante,  §80.  See,  also,  Kistler's 
Appeal,  73  Pa.  398. 

3  Barry  v.  Hill,  166  Pa.  344; 
Braun  v.  First  German  E.  L.  Church, 
198  Pa.  157;  Oden  v.  Lockwood,  136 
\la.  514. 

*  See  Leahey  v.  Witte,  123  Mo.  207, 
for  a  close  case. 

5  69  Pa.  443. 

'  See,  also.  Brown  v.  Dysinger,  1 
Rawle,  408;  Seylar  v.  Carson,  69  Pa. 
81;  Bo^-nton  v.  Housler,  73  Id.  453; 
Beegle  v.  Wentz,  55  Id.  369;  Seo- 
christ's  Appeal,  66  Id.  237;  Thom- 
son's Lessee  r.  White,  1  Dall.  447; 
Wolford   V.  Herrington,   74   Pa.   311; 

22 


Phillips  V.  Hardenberg,  181  Mo.  463; 
Dickson  v.  Stewart,  71  Neb.  424. 
But  it  seems  that  this  rule  will  apply 
to  those  cases  only  in  which  the  party 
who  relies  upon  the  verbal  promise 
has  an  interest  in  the  land  (and  a 
mere  initiate  right  of  curtesy  in  the 
promisee  is  not  sufficient,  Lancaster 
Trust  Co.  V.  Long,  220  Pa.  499).  See 
Wolford  V.  Herrington,  86  Pa.  39, 
overruling  the  dicta  in  Wolford  v. 
Herrington,  supra. 

7  Church  V.  Ruland,  64  Pa.  443; 
Cilpatrick  v.  Glidden,  81  Me.  137; 
Amherst  Coll.  v.  Ritch,  151  N.  Y.  282; 
Ahrens  v.  Jones,  169  Id.  555;  Hoff- 
ner's  Estate,  161  Pa.  331;  Stone  v. 
Manning,  103  Tenn.  232;  Campbell 
V.  Moore,  124  Ala.  236;  Ransdell  v. 
Moore,  153  Ind.  393;  Pollard  v.  Mc- 
Kenncy,  69  Neb.  742;  Smullin  v. 
Wharton,  73  Neb.  667. 


338 


FRAUD. 


[part  II. 


the  notes. ^  The  ground  of  these  decisions  is  that  the  Statute  of 
Frauds  is  not  to  be  used  as  a  shelter  for  fraud ;  ^  and  that  where 
a  party  has  by  his  promise  to  buy  or  hold  or  dispose  of  real  estate 
for  the  benefit  of  another  induced  action  or  forbearance  by  re- 
liance upon  such  promise,  it  would  be  a  fraud  that  the  promise 
should  not  be  enforced ;  ^  and  that  the  method  of  enforcement 
will  be  through  the  machinery  of  a  trust. 


SECTION  II. 


FRAUD    ARISING    FROM    THE    INTRINSIC    NATURE    OF    THE    TRANS- 
ACTION. 


219.  Contracts    void    by    reason    of 

their    terms;    inadequacy    of 
consideration. 

220.  Bargains  by  reversioners  and  ex- 

pectant heirs. 

221.  Change  of  the  law  in  England. 

222.  Usurious  contracts. 

223.  GambUng  contracts. 

224.  Contracts    void    by    reason    of 


their  subject-matter;  ex  turpi 
causd  non  oritur  actio. 

225.  Gifts  in   restraint  of  marriage; 

rule  of  the  Roman  Law. 

226.  Conditions  in  general  restraint 

of  marriage. 

227.  Conditions  in  partial  restraint. 

228.  Contracts  in  restraint  of  trade. 

229.  Sales  of  public  offices. 


219.  Contracts  void  by  reason  of  their  terms  ;  inadeqnacy 
of  consideration. 

The  second  of  the  classes  into  which  frauds  were  divided  in 
Chesterfield  v.  Janssen,  embraces  those  cases  in  which  fraud  is 
presumed  to  arise  from  the  intrinsic  nature  and  subject-matter 
of  the  transaction  itself,  without  any  violation  of  fiduciary  re- 
lations. 


1  Squires's    Appeal,    70    Pa.    266 
Gruhn  v.   Richardson,   128  111.   178 
Broder    7-.     Conklin,     77    Cal.     330 
Manning    v.    Pippen,    86    Ala.    357 
Kent  V.  Dean,  128  Id.  600;  Bucking- 
ham V.  Clark,  61  Conn.  204;  Rollins 
?».   Mitchell,   52   Minn.   41;   Rozell  v. 
Vansyckle,    11    Wash.   79;   Cutler   ?'. 
Babcock,     SI     Wis.     195;     Goodwin 
V.    McMinn,    193    Pa.    646;    CJregory 
V.  BowLsby,   126  la.  588;  Aldrich  v. 
Hassinger,  13  Hawaii,  138;  Newis  v. 
Topfer,  121  la.  433;  Parker  r.  Catron, 
120  Ky.  145;  Harrison  r.  Craven,  188 


Mo.  590;  Barker  v.  Montana  Gold 
Mining  Co.,  35  Mont.  351;  Russell  v. 
Wade,  146  N.  C.  116;  McDonald  v. 
TjTier,  84  Ark.  189;  Hilt  v.  Simpson, 
230  111.  170;  Gemmel  i'.  Fletcher,  76 
Kan.  577;  Coyne  v.  Supreme  Con- 
clave, 106  Md.  54;  Virginia  Coal  Co. 
V.  Lambert,  107  Va.  368. 

2  See  Haigh  7'.  Kaye,  L.  R.  7  Ch. 
469. 

■niiffen  V.  Taylor,  139  Ind.  573. 
But  Peterson  ;•.  Boswell,  137  Id.  211, 
would  not  seem  to  be  in  accord  with 
this  rule.    Davis  i'.  Kerr,  141  N.  C.  11. 


CH.  II.] 


FRAUD, 


339 


A  transaction  may  be  inherently  fraudulent, — that  is  to  say, 
its  fraudulent  character  may  be  inferred  from  its  very  nature — for 
one  of  two  reasons,  either,  first,  because  of  its  terms;  or  second, 
because  of  its  subject-matter.^ 

And  first,  a  contract  may  be  inherently  fraudulent  from  its 
very  terms.  Of  contracts  of  this  kind,  instances  will  ])e  found 
in  those  cases  in  which  inadequacy  of  consideration  sometimes 
justifies  a  rescission. 

Ordinarily,  inadequacy  of  consideration  will  be  insufficient  to 
set  a  bargain  aside,  or  to  justify  a  refusal  to  enforce  its  specific 
performance.'  Where,  however,  the  inadequacy  is  so  great  as 
to  "shock  the  conscience"  (which  is  the  phrase  usually  em- 
ployed), the  contract  may  be  rescinded.  Cases,  indeed,  very 
rarely  occur  in  which  inadequacy  of  consideration  exists  alone 
as  a  ground  for  rescission ;  for  it  is  but  seldom  that  a  man  would 
make  a  bargain  of  such  a  character,  unless  he  were  deceived  by 
actual  fraud,  or  were  deficient  in  intellect,  or  were  subject  to 
undue  influence,  all  of  which  circumstances  would  of  themselves 
call  for  equitable  interposition."''  A  case,  therefore,  of  fraud  from 
inadec}uacy  of  consideration,  pure  and  simple,  and  unmixed  with 
any  other  kind  of  fraud,  is  of  very  rare  occurrence.  Neverthe- 
less, the  rule  must  be  considered  as  well  settled,  although  rather 
by  dicta  than  by  decisions,  that  a  transaction  will  be  set  aside  if 
there  is  "an  inequality  so  strong,  gross,  and  manifest,, that  it 


1  It  will  be  observed  that  many  of 
the  contracts  which  are  discussed  in 
this  section  are  of  an  illegal,  rather 
than  of  a  strictly  fraudulent  nature. 
The  relief,  however,  which  equity 
affords  in  such  cases  is  usually  con- 
sidered as  falling  under  the  head  of 
fraud  (see  1  Story's  Eq.  Jurisp., 
Chap.  VII.),  and  is,  therefore,  so 
treated  in  the  present  work. 

-  Harrison  v.  Guest,  6  De  G.,  M.  & 
G.  424;  8  H.  L.  Cas.  481;  Erwin  v. 
Parham,  12  How.  197;  Slater  v. 
Maxwell,  6  Wall.  273;  Osgood  v. 
Franklin,  2  Johns.  Ch.  1,  23;  David- 
son ?<.  Little,  22  Pa.  24.'');  Cum- 
mings's  Appeal,  67  Id.  404;  Bodel 
V.  Loomis,  11  N.  H.  9;  Park  v.  John- 
son, 4  Allen,  259;  Lee  v.  Kerby,  104 
Mass.  420,  428;  Hemingway  v.  Cole- 


man, 49  Conn.  390;  Seymour  ?'.  De- 
lancy,  3  Cow.  445;  Wintcrmute  v. 
Snyder,  3  N.  J.  Eq.  489;  Weber  v. 
Weitling,  17  Id.  441;  Shepherd  v. 
Bevin,  9  Gill,  32;  Cribbins  v.  Mark- 
wood,  13  Graft.  495;  Banner  v. 
Rosser,  96  Va.  238;  Bresee  v.  Brad- 
field,  99  Id.  331;  Butler  v  Haskell,  4 
Dess.  651;  White  v.  Flora,  2  Tenn. 
426;  January  v.  Martin,  1  Bibb,  586; 
Steele  v.  Worthington,  2  Ohio,  182; 
Warner  v.  Daniels,  Wood  &  Min.  92; 
Wood  V.  Craft,  85  Ala.  260;  Cooper  v. 
Reilly,  90  Wis.  427;  1  Sug.  V.  &  P. 
419  (8th  Am.  ed.);  Zempel  v.  Hughes, 
235  111.  424. 

^  See  Haygarth  v.  Wearing,  L.  R. 
12  Eq.  320;  Grindrod  v.  Wolf,  38  Kan. 
292. 


340 


FRAUD. 


[part  II. 


must  be  impossible  to  state  it  to  a  man  of  conmion  sense  without 
producing  an  exclamation  at  the  inequality  of  it."  ^ 

The  relief,  however,  in  such  cases  is  granted  (it  is  said)  not 
on  the  ground  of  inadequacy  of  consideration,  but  on  the  ground 
of  fraud  as  evidenced  thereby.^ 

While  chancery  might  hesitate  to  interfere  solely  on  the 
ground  of  inadequacy  of  price,  yet  courts  of  equity  are  not  slow 
to  seize  upon  other  circumstances  impeaching  the  fairness  of 
the  transaction  where  gross  inadequacy  exists.^ 

Equity,  moreover,  will  sometimes  refuse  to  enforce  the  specific 
performance  of  a  contract,  where  the  consideration  is  grossly 
inadequate,  although  it  might  not  interfere  to  rescind  the  con- 
tract if  executed. "*  Immense  disproportion  between  value  and 
cost  shocks  the  conscience  of  a  chancellor  and  forbids  the  sup- 
porting action  of  a  court  of  equity.^ 

220.  Bargains  by  reversioners  and  expectant  heirs. 

There  was,  however,  until  recently,  an  important  class  of 
cases  in  which  inadequacy  of  consideration  had  been  held  suffi- 


1  Per  Lord  Thurlow  in  Gwynne  v. 
Heaton,  1  Bro.  C.  C.  8.  See,  also, 
James  v.  Morgan,  1  Lev.  Ill  (the 
horseshoe  case) ;  Summers  r.  Griffiths, 
35  Beav.^27;  Byers  r.  vSurget,  19  How. 
303;  EjTe  v.  Potter,  15  Id.  60;  Os- 
good V.  FrankHn,  2  Johns.  Ch.  1; 
Gifford  V.  Thorn,  9  N.  J.  Eq.  702; 
Hodgson  !'.  Farrell,  15  Id.  88;  Mor- 
riso  V.  PhiUiber,  30  Mo.  145;  Mitchell 
V.  Jones,  50  Id.  438;  Macoupin  Co.  v. 
People,  58  111.  191;  Madison  Co.  v. 
People,  Id.  456;  Weist  v.  Garman, 
3  Del.  Ch.  422;  Butler  r.  Haskell,  4 
Dess.  651;  Hamet  v.  Dundass,  4  Pa. 
178;  Davidson  v.  Little,  22  Id.  245; 
Sime  V.  Norris,  8  Phila.  R.  84  (dis- 
approved in  Boyce  i'.  Fisk,  110  Cal. 
107);  Coffee  v.  Ruffin,  4  Cold.  507; 
Tally  /•.  Smith,  1  Id.  290;  Stephens  v. 
Ozbourne,  107  Tenn.  572;  Kelly  v. 
McGuire,  15  Ark.  555;  Case  v.  Case, 
26  Mich.  484;  Dunn  v.  Chambers,  4 
Barb.  376;  Taylor  v.  Atwood,  47 
Conn.  498;  Brown  v.  Hall,  14  R.  I. 
249;  Howard  v.  Howard,  87  Ky.  616; 


Galbraith  v.  McLaughlin,  91  Iowa, 
399;  Garrett  v.  Kansas  City  Coal 
Mining  Co.,  113  Mo.  330. 

2  Kerr  on  Fraud  and  Mistake,  187. 
See,  also,  Bigelow  on  Fraud,  137; 
Coffey  v.  Sullivan,  63  N.  J.  Eq.  296; 
Jones  V.  Degge,  84  Va.  685;  St.  Louis 
Ry.  Co.  V.  Phillips,  27  U.  S.  App. 
643. 

3  Schroeder  v.  Young,  161  U.  S. 
334;  and  see  p.  338,  where  Mr.  Jus- 
tice Brown  rehearses  a  number  of 
circumstances  which  ordinarily  will 
justify  such  action  by  the  court, 
and  where  the  authorities  are  re- 
viewed. See,  also,  Wenegar  v.  Bol- 
lenbach,  180  111.  222. 

*  See  Graham  v.  Pancoast,  30  Pa. 
97;  Osgood  v.  Franklin,  2  Johns.  Ch. 
1;  Eastman  r.  Palmer,  46  N.  H.  464; 
though  see  Powers  ?'.  Mayo,  97  Mass. 
180;  and  O'Brien  v.  Boland,  166 
Mass.  481 .  See,  also,  post,  §  374,  and 
cases  there  cited. 

» Randolph  v.  Quidnick  Co.,  135 
U.  S.  459. 


CH.  II.] 


FRAUD. 


341 


cient  to  set  the  contract  aside,  although  not  amounting  to  that 
gross  and  shocking  inequahty  mentioned  above. 

These  were  cases  of  sales  of  their  interests  by  heirs  and  re- 
versioners.^ The  law  upon  the  subject  was  altered  by  Statute 
of  31  and  32  Vict.,  c.  4;  but  as  the  former  English  doctrines  have 
been  considered  and  adopted  in  several  decisions  in  this  country, 
it  will  be  proper  to  notice  them.  Heirs  and  reversioners  were 
supposed  in  the  eye  of  the  law  to  be  so  liable  to  imposition,  and 
to  be  so  exposed  to  chances  of  being  induced  to  make  hard  and 
unfair  agreements  touching  the  disposition  of  their  expectant 
interests,  that  it  has  been  deemed  a  matter  of  policy  to  lay  it 
down  as  a  general  rule,  that  he  who  deals  with  them  has  cast 
upon  him  the  burden  of  showing  that  the  purchase  was  a  fair 
one,  and  the  price  paid  a  reasonable  sum,  and  of  the  full  value. ^ 

Heirs  and  reversioners  are  very  often  driven  by  great  distress 
to  make  these  bargains,  and  those  who  deal  with  them  are  prone 
to  take  an  inequitable  advantage  of  their  condition,  and  the 
parties  do  not  stand  upon  equal  terms.  It  has,  therefore,  been 
found  necessary  to  lay  dow^n  the  rule,  that  in  all  these  transac- 
tions distress  and  consequent  inequality  will  be  presumed  to 
exist,  and  the  onus  of  proving  that  the  price  is  an  adequate  one 
is  thrown  on  the  purchaser.  ^ 


1  See  Webster  v.  Cook,  L.  R.  2  Ch 
546,  and  James  v.  Kerr,  40  Ch.  D 
449.  Though  in  some  cases  it  has 
been  held  that  the  rule  stated  in  the 
text  does  not  apply  to  reversioners 
Cribbins  v.  Markwood,  13  Gratt.  495 
See  Nevill  v.  Snelling,  43  L.  T.  Rep 
(n.  s.)  244. 

2McClure  v.  Raben,  133  Ind.  507 
Chambers  v.  Chambers,  139  Id.  Ill 
Wright  V.  Wright,  51  N.  J.  Eq 
475. 

3  Shelly  V.  Nash,  3  Haddocks,  235; 
Earl  of  Aylesford  v.  Morris,  L.  R.  8 
Ch.  490;  O'Rorke  v.  Bolingbroke,  2 
App.  Cas.  814-834  (where  the  rule  as 
to  the  onus  probandi  was  recognized, 
although  it  was  held  by  a  majority  of 
the  Lords — Lord  Hatherly  dissenting 
— that  the  burden  of  proof  had  in 
that  case  been  satisfied).  Savery  v. 
King,  5  H.  L.  Cas.  627;  Edwards  v. 


Burt,  2  De  G.,  M.  &  G.  55;  Fry  v. 
Lane,  40  Ch.  D.  320;  Rae  v.  Joyce,  29 
L.  R.  (Ir.)  500;  Kevans  v.  Joyce 
[1896],  1  I.  R.  442^73.  See,  also, 
Jenkins  v.  Pye,  12  Pet.  241;  Butler  v. 
Haskell,  4  Dess.  651 ;  Boynton  v. 
Hubbard,  7  Mass.  112;  Hale  v.  Hol- 
lon,  90  Tex.  427;  Poor  v.  Hazleton, 
15  N.  H.  564;  Larrabee  v.  Larrabee, 
.34  Me.  477;  Power's  Appeal,  63  Pa. 
443;  Mastin  v.  Marlow,  65  N.  C.  695; 
Lowry  v.  Spear,  Bush,  451;  Varick 
V.  Edwards,  1  Hoff.  Ch.  382;  Fitch  v. 
Fitch,  8  Pick.  480;  Trull  v.  Eastman, 
3  Met.  121 ;  Nimmo  v.  Davis,  7  Tex. 
26;  Needles  v.  Needles,  7  Ohio  St.  432; 
Butler  V.  Duncan,  47  Mich.  94;  Notes 
to  Chesterfield  i'.  Janssen,  1  Lead, 
Cas.  Eq.  428;  1  Sug.  V.  &  P.  426 
(8th  Am.  ed.);  Grindrod  v.  Wollf,  38 
Kan.  292.  In  some  cases  the  court 
will  direct  an  inquiry  as  to  the  value 


842 


FRAUD, 


[part  n. 


Indeed,  in  some  cases,  the  Court  of  Chancery  in  England  has 
extended  its  protection  to  expectant  heirs  to  a  degree  which 
almost  incapacitated  them  from  binding  themselves  by  any  con- 
tract; and  bargains  of  their  inheritance  have  been  set  aside,  al- 
though the  conduct  of  the  purchaser  may  have  been  entirely 
unimpeachable.  "There  was  nothing  dishonorable  or  immoral 
in  the  defendant's  conduct,"  said  Sir  William  Grant,  in  a  case 
which  wtU  illustrates  the  extent  to  which  the  English  doctrine 
was  carried,  "but  he  has  obtained  a  bargain  of  which,  upon  the 
principles  of  this  court,  he  cannot  avail  himself."  ^  A  decree  was 
accordingly  made  directing  a  reconveyance  of  the  premises  in 
question,  upon  payment  of  the  loan  with  interest. 

It  was  at  one  time  held  that  the  circumstance  that  the  father 
knew  of  the  design  of  the  son  to  dispose  of  his  expectant  in- 
terest, and  did  not  oppose  the  same,  would  alter  the  general 
rule,  and  render  the  transaction  unimpeachable.^  But  the  truer 
doctrine  seems  to  be  that  the  right  to  set  the  transaction  aside 
is  the  son's  equity,  and  cannot  be  taken  away  from  him  by  any 
knowledge  or  consent  on  the  part  of  the  father.^ 

Where  there  is  a  family  arrangement  made  between  father 
and  son  in  regard  to  the  disposition  of  the  reversionary  interest, 
in  which  no  undue  influence  appears  to  have  been  used,  the 
transaction  will  be  upheld ;  ^  and  this  is  the  case,  not  only  in  Eng- 
land, but  also  in  the  United  States,  where  releases  by  children  of 
their  interests  in  the  estate  of  parents,  in  consideration  of  present 
advancements,  have  been  held  valid. ^ 

Indeed,  it  may  be  said  that  the  tendency  of  modern  American 
decisions  is  to  uphold  the  transfer  of  reversionary  and  expectant 
interests,  unless  there  is  a  confidential  relation  or  actual  bad 
faith. « 


of  the  reversionary  interest.     1  Sug. 
V.  and  P.  427. 

1  Evans  v.  Peacock,  16  Ves.  512. 

2  King  V.  Hamlet,  2  My.  &  K.  456, 
approved  in  3  C.  &  F.  218.  See  Mc- 
Clure  V.  Raben,  133  Ind.  507. 

3  See  the  remarks  of  Lord  Chan- 
cellor Selborne  in  Earl  of  Aylesford  v. 
Morris,  L.  R.  8  Ch.  491;  Sug.  V.  &  P. 
316  (11th  ed.);  note  to  Chesterfield 
V.  Janssen,  1  Lead.  Cas.  Eq.  485. 

*  Tweddell  v.  Tweddell,  T.  &  R.  13; 
1  Sug.  V.  &  P.  427  (8th  Am.  ed.). 


5  Quarles  v.  Quarles,  4  Mass.  680: 
Kenney  v.  Tucker,  8  Id.  143;  Powers' 
Appeal,  63  Pa.  443.  The  intention 
that  the  release  is  to  cover  future 
interests  must  be  plainly  manifest. 
See  Miller's  Appeal,  31  Pa.  340. 

8  Whelen  v.  Phillips,  151  Pa.  312- 
322;  Kuhns's  Appeal,  163  Pa.  438; 
Clendening  v.  Wyatt,  54  Kan.  525; 
Singer's  Estate,  217  Pa.  295;  Hud- 
son V.  Hudson,  222  111.  527;  Mc- 
Adams  v.  Bailey,  169  Ind.  532. 


CH.  II.] 


i^RAUD, 


343 


Sales  of  reversionary  interests  may  be  made  at  auction,  or,  it 
seems,  after  a  fair  valuation,^  and  the  rule  as  to  the  voidal)ility 
of  these  contracts  does  not  apply  in  cases  where  the  holder  of 
the  })articulai'  estate  joins  with  the  reversioner,  for  there  both 
owners  constitute,  as  it  were,  one  party  controlling  the  whole 
fee,  and  dealing  with  the  purchaser  on  equal  terms.^ 

Where  any  transaction  with  an  expectant  heir  or  reversioner 
is  set  aside  on  the  sole  ground  of  inadequacy  of  price,  the  court 
will  only  give  relief  upon  the  payment  of  the  sum  actually  ad- 
vanced, with  interest  and  costs.  This  is  in  accordance  with  the 
maxim  explained  in  the  Introduction,  that  he  who  seeks  equity 
must  do  equity.^  The  application  of  this  maxim  to  the  class  of 
transactions  now  under  consideration  is  thoroughly  established 
in  England,  and  would  seem  to  be  recognized,  as  a  general  rule, 
in  this  country."* 

221.  Change  of  the  law  in  England. 

It  was  stated  above  that  the  law  upon  the  subject  of  sales 
by  reversioners  has  been  altered  in  England.  This  was  effected 
by  Stat.  31  and  32  Vict.,  c.  4,  by  which  it  was  enacted  that  no  pur- 
chase made  bona  fide,  and  without  fraud  or  unfair  dealing,  of  any 
reversionary  interest  in  real  or  personal  estate,  should  be  there- 
after opened  or  set  aside  merely  on  the  ground  of  undervalue. 
Under  a  proper  construction  of  the  language  of  this  act,  how- 
ever, it  has  been  held  that  the  exception  in  the  statute  leaves 
unfair  dealings  untouched,  and  that  the  statute  has  not  repealed 
the  doctrines  of  the  Court  of  Chancery,  by  which  protection 
is  thrown  around  unwary  young  men  in  the  hands  of  unscrupu- 
lous persons,  ready  to  take  advantage  of  their  necessities.^ 


1  Shelly  V.  Nash,  3  Mad.  232;  Lord 
V.  Jeffkins,  35  Beav.  7. 

2  See  notes  to  Chesterfield  v.  Jans- 
sen,  1  Lead.  Cas.  Eq.  606  (4th  Eng. 
ed.). 

3  Ante,  §  43. 

*  Wharton  v.  May,  5  Ves.  27  (and 
see  the  decree  in  that  case,  as  stated 
in  same  volume,  pp.  68  and  69); 
Evans  v.  Peacock,  16  Id.  512;  Boyd 
V.  Dunlap,  1  Johns.  Ch.  478;  Williams 
V.  The  Savage  Mnfg.  Co.,  1  Md.  Ch. 
306;  3  Id.  420;  Boynton  v.  Hubbard, 
7  Mass.  112;  American  note  to  Ches- 
terfield V.  Janssen,  1  Lead.  Cas.  Eq. 


836  (4th  Am.  ed.).  See  Seylar  v. 
Carson,  69  Pa.  81,  and  Smull  v.  Jones, 
6  W.  &  S.  128,  for  decisions  which 
seem  to  be  at  variance  with  this 
general  doctrine,  and  the  remarks  on 
those  cases  in  1  Lead.  Cas.  Eq.  836 
5  Miller  r.  Cook,  L.  R.  10  Eq.  641 . 
Tyler  v.  Yates,  L.  R.  6  Ch.  665;  Earl 
of  Aylesford  v.  Morris,  8  Id.  484.  It 
has  also  been  held  that  the  repeal  of 
the  usury  laws  in  no  way  affects  the 
jurisdiction  of  the  court  in  reference 
to  dealings  with  expectant  heirs. 
Croft  V.  Graham,  2  D.  J.  &  S.  155; 
Rees  V.  DeBernardy  [1896],  2  Ch.  437. 


344 


FRAUD. 


[pARr  L. 


Contracts  made  by  sailors  for  the  disposition  of  their  prize 
money  stand  very  nearly,  if  not  quite,  upon  the  same  footing 
as  the  transactions  which  have  just  been  considered ;  and  if  courts 
of  equity  will  not  in  all  cases  set  aside  agreements  of  this  descrip- 
tion, they  will  at  least  do  so  where  the  slightest  inequality  ap- 
pears, or  any  undue  advantage  whatever  has  been  taken. ^ 

2 '2  2.  Usurious  contracts. 

Another  class  of  contracts  which  are  fraudulent  because  of 
their  terms  are  contracts  which  stipulate  for  usury.  Usury 
is  defined  to  be  an  exorbitant  profit  for  the  use  of  money;  ^ 
and  it  is  a  subject  which,  in  most  countries,  is  regulated  by 
statute. 

No  usury  laws  now  exist  in  England,  the  statutes  forbidding 
it  having  been  repealed.  It  has,  nevertheless,  been  decided  that 
the  repeal  of  these  laws  did  not  alter  the  doctrine  by  which  the 
Court  of  Chancery  affords  relief  against  improvident  and  ex- 
travagant bargains.^ 

By  the  former  English  acts,  contracts  tainted  with  usury  were 
absolutely  void.  In  some  of  the  United  States  the  usurious  ex- 
cess over  the  lawful  rate  alone  is  void. 

Courts  of  equity,  following  the  mle  of  law  laid  down  by  the 
statute,  will  not  assist  a  lender  to  enforce  a  usurious  contract;  ^ 
and  it  will,  on  the  other  hand,  in  a  proper  case,^  aid  the  borrower 
to  recover  back  the  amount  paid  for  usurious  interest,  or  may 
decree  a  surrender  of  securities  left  as  collateral  for  a  usurious 
debt.« 

But  if  the  borrower,  before  repayment  of  the  loan,  comes  into 
court  to  have  the  transaction  set  aside,  the  court  will  afford  re- 
lief only  upon  condition  of  paying  the  amount  actually  due,  i.  e., 
the  principal  sum  borrowed  with  lawful  interest.^ 


iTaylour  v.  Rochfort,  2  Ves.  Sr. 
281;  How  V.  Weldon,  Id.  516,  518; 
Baldwin  v.  Rochford,  1  Wils.  229; 
Story's  Eq.  Jurisp.  §  332. 

2  2  Black.  Com.  456;  Duquesne 
Bank's  Appeal,  74  Pa.  426. 

3  Earl  of  Ayle*sford  v.  Morris,  L.  R. 
8  Ch.  484.  See,  also,  Sime  v.  Xorris, 
8  Phila.  84. 

*  Fanning  v.  Dunham,  5  Johns.  Ch. 
R.  142. 

5  See  Atkinson  v.  Allen,   36  U.  S. 


App.  255,  where  relief  in  equity  was 
refused  on  the  ground  that  there  was 
an  ample  defence  at  law. 

6  Peters  v.  Mortimer,  4  Edw.  Ch. 
279;  Vandergrif  v.  Swinney,  158  Mo. 
527;  Kommer  ?'.  Harrington,  83 
Minn.  114;  Portneuf  Lodge  r.  West- 
ern Saving  Co.,  6  Idaho,  673.  See 
Munford  r.  McVeigh,  92  Va.  446. 

7  See  Whitehead  v.  Peck,  1  Kelly, 
140;  Ballinger  v.  Edwards,  4  Ired. 
Eq.  449;  Rogers  v.  Rothbun,  1  Johns. 


CH.  II.] 


FRAUD. 


345 


Equity  will  also  relieve  in  cases  where  the  usurious  loan  as- 
sumes the  appearance  of  a  sale.  The  goods  in  such  a  transac- 
tion are  usually  taken  by  the  borrower  at  an  exorbitant  rate 
on  credit,  and  are  then  resold  by  him,  so  that  the  transaction 
substantially  amounts  to  a  loan  of  the  sum  realized  by  the  re- 
sale, at  a  usurious  interest.  In  such  a  case  ecjuity  will  set  the 
transaction  aside,  upon  repayment  of  the  sum  produced  by  the 
resale,  with  lawful  interest.^ 


223.  Gambling  contracts. 

Still  a  third  class  of  contracts,  which  are  regarded  with  dis- 
favor both  at  law  and  in  equity,  on  account  of  the  iniquity  of 
their  terms,  is  that  which  embraces  gambling  transactions. 

A  bet  at  common  law  was  good,  unless  there  was  some  special 
ground  of  invalidity  by  reason  of  public  policy— as,  for  example, 
a  wager  upon  elections. 

An  act  of  Parliament  passed  in  the  reign  of  George  II.  pro- 
hibited wagering  contracts  of  insurance ;  and  b}'  statute  of  8  and 
9  Vict.,  c.  109,  §  18,  all  agreements  by  way  of  gaming  or  wager- 
ing are  made  null  and  void.- 

In  the  United  States  the  general  tendency  is  to  regard  all 
gaming  and  wagering  as  opposed  to  public  policy,  and  there- 
fore void.  The  subject  is  regulated  by  statutes  in  most  of  the 
states.^ 

The  rule,  both  at  law  and  in  equity  in  regard  to  gambling 
transactions,  now  seems  to  be  that  the  courts  will  not  only  re- 
fuse to  lend  their  aid  for  the  purpose  of  enforcing  such  con- 
tracts,"* but  they  will  not  assist  the  losing  party  in  setting  the  con- 
tracts aside  or  recovering  back  the  money  paid.     The  maxim 


Ch.  367;  Williams  v.  Fitzhugh,  37 
N.  Y.  444;  Sporrer  v.  Eifler,  1  Heisk. 
633;  Turner  v.  Merchant's  Bank,  126 
Ala.  397.  See,  for  an  exceptional 
case,  M.,  K.  &  T.  Trust  Co.  v.  Krum- 
seig,  40  U.  S.  App.  620.  In  cases  of 
oppression  and  fraud  the  lender  may 
be  compelled  to  prove  his  accounts. 
Barrow  v.  Rhinelander,  1  Johns.  C'h. 
557. 

1  Waller  v.  Dalt,  1  Ch.  Ca.  276;  1 
Dick.  8;  Barny  v.  Beak,  2  Ch.  Ca.  136; 
Barker  v.  Vansommer,  1  Bro.  C.  C. 
149. 


2  "Provided  that  this  prohibition 
shall  not  apply  to  any  subscription  or 
agreement  to  subscribe  towards  a 
plate,  prize  or  sum  of  money  awarded 
to  the  winner  of  any  lawful  game, 
sport,  pastime  or  exercise."  Horf 
races,  steeplechases  and  foot  race 
are  considered  among  the  lawful 
games.  See  Addison  on  Contracts, 
893. 

3  See    Wilkinson     r.    Toqsley,     16 
Minn.  299. 

4  Lynch    r.    Rosenthal,    144    Ind. 
86. 


346 


FRAUf). 


[part  li. 


applicable  to  such  cases  is  potior  est  conditio  possidentis.'^  Equity 
may,  however,  enjoin  a  plaintiff  from  enforcing  a  judgment 
which  has  been  obtained  in  a  gaming  contract.- 

It  has  been  decided  in  England  that  a  bond  given  to  secure 
a  sum  of  money  lost  at  play  might  be  ordered  to  be  delivered 
up."''    But  there  is  a  decision  the  other  way  in  the  United  States.'* 

But  if  the  money  has  not  got  home  to  one  of  the  parties  to 
the  wager,  but  rests  with  a  stakeholder,  its  recovery  from  the 
hands  of  such  third  party  may  be  enforced  in  equity.  This  was 
the  statement  of  the  law  in  Godsall  v.  Boldero,^  and  it  has  been 
applied  in  many  cases.^ 

Time  contracts  in  stocks,  or  other  subjects  of  bargain  and 
sale,  which  are  merely,  in  substance,  gaming  contracts  cannot 
be  enforced.^  It  is  otherwise  if  they  are  bona  fide  purchases 
and  sales.* 

224.  Contracts  void  by  reason  of  their  subject-matter;   ex 

till  pi  cnuad  )ion  oritur  actio. 

Contracts  may  sometimes  be  presumed  to  be  fraudulent  (or 
rather  incapable  of  being  enforced)  from  their  subject-matter; 
and  of  transactions  of  this  description  illustrations  may  be  found 
in  agreements  to  waive  an  et]uity  of  redemption,  marriage 
brokerage  contracts,  contracts  in  restraint  of  marriage,  or  of 
trade,  and  contracts  for  procurement  of  office. 


1  Bosanquett  v.  Dashwood,  Cas. 
temp.  Talb.  41;  Adams  i\  Barrett,  5 
Ga.  404;  Thomas  v.  Cronise,  16  Ohio, 
54;  Cowles  v.  Raguet,  14  Id.  55; 
Spaulding  v.  Preston,  21  Vt.  9;  Got- 
walt  V.  Neal,  25  Md.  434.  See,  also, 
Pope  V.  Chaffee,  14  Rich.  Eq.  69; 
though  see  Rawden  v.  Shadwell, 
Ambler,  268;  Chapin  v.  Dake,  57  111. 
295,  and  Dauler  r.  Hartley,  178  Pa. 
23.     See  2  Kent'.s  Com.  467. 

2  Skipwith  V.  Strother,  3  Rand.  214. 
a  Rawden  v.  Shadwell,  Ambkr,  268. 
*  Cowles  V.  Raguet,  14  Ohio,  55. 

5  2  Sm.  Lead.  Cas.  p.  1530  (9th 
Am.  ed.). 

6  Dauler  v.  Hartley,  178  Pa.  23 
(where  the  authorities  are  collected), 
and  Trenerj-  v.  Goudie,  106  Iowa,  693. 

^  Brua's  Appeal,  55  Pa.  294;  Freed- 


ley  V.  Jacoby,  220  Id.  609;  Kahn  v. 
Walton,  46  Ohio,  195;  Morris  v. 
Norton,  43  U.  S.  App.  739;  Phelps 
V.  Holderness,  56  Ark.  300;  D.^ws  r\ 
Glaspel,  4  X.  Dak.  251;  Waite  v. 
Frank,  14  S.  Dak.  626;  Minzesheimer 
V.  Doolittle,  60  N.  J.  Eq.  394;  Uni- 
versal Stock  Ex.  V.  Strachan  [1896], 
A.  C.  166. 

8  Smith  V.  Bouvier,  70  Pa.  325; 
Kirkpatrick  v.  Bonsall,  72  Id.  155; 
Maxton  v.  Gheen,  75  Id.  166;  Wagner 
V.  Hildebrand,  187  Id.  136;  Lynn  v. 
Culbertson,  83  111.  33;  Rudolph  v. 
Winters,  7  Neb.  126;  Forget  v.  Os- 
tigny  [1895],  A.  C.  318.  But  the 
purchase  of  stock  for  speculation, 
even  on  margin,  is  jiot,  necessarily, 
a  gambling  transaction.  Taylor's  As- 
signed Estate,  192  Pa.  307,  309,  313. 


CH.  II.]  FRAUD.  347 

As  to  the  first  of  these  contracts,  the  nature  of  an  equity  of 
redeniption  has  been  ah'eady  explained  in  the  chapter  devoted 
to  mortgages,  and  the  reasons  for  the  pohcy  of  the  law,  pro- 
hibiting any  stipulations  in  the  mortgage  by  which  the  right 
should  be  waived,  were  at  the  same  time  attempted  to  be  eluci- 
dated. 

It  will  be  sufficient  to  say,  here,  that  this  doctrine  should  prop- 
erly receive  this  passing  notice  under  the  head  of  fraud,  as  it 
was  introduced  for  the  purpose  of  preventing  impositions  upon 
the  weakness  and  necessities  of  debtors.  Any  clause  in  a  mort- 
gage, or  any  collateral  agreement,  by  which  the  mortgagee's 
equity  of  redemption  is  in  any  way  clogged,  will  be  considered 
as  a  fraud  upon  his  rights,  and  will  be  disregarded  in  a  court 
of  ecjuity.^ 

As  to  the  other  cases  mentioned  above,  they  all  fall  under 
the  operation  of  the  general  maxim,  ex  turpi  causd  non  oritur 
actio,  which  is  recognized  in  equity,  sometimes  passively,  by  the 
refusal  of  the  courts  to  entertain  any  bill  brought  to  enforce 
such  a  contract,  and  sometimes  actively,  by  entertaining  a  bill 
filed  for  the  purpose  of  having  an  illegal  security,  or  rather  a 
security  given  upon  an  illegal  consideration,  delivered  up  and 
cancelled,  or  for  the  ])urpose  of  enjoining  any  action  under  and 
by  virtue  of  the  illegal  contract. 

For  example,  marriage  brokerage  contracts  (which  is  the  name 
usually  given  to  agreements  for  negotiating  marriages),  while 
they  were  good  at  the  civil  law,^  have  been  held  illegal  at  com- 
mon law,^  and  are  regarded  as  utterly  void  in  equity."* 

Contracts  in  restraint  of  marriage,^  and  contracts  for  future 
separation  ^  are  equally,  though  for  different  reasons,  illegal. 
A  covenant  not  to  marry  any  person  except  the  covenantee  is 
void  at  law;^  and  a  bond,  with  a  similar  condition,  has  been 
ordered  to  be  cancelled  in  chancery.* 

1  Ante,     chapter     on      Mortgages,  White  v.  Nuptial  Benefit  Union,  76 

§  153.  Ala.  251;  Johnson  v.  Hunt,  22  Am. 

-  Matchmakers  (proxenetw)  were  al-  Law  Reg.  777-780;  Story's  Eq.  Juris, 

lowed  to  receive  a  reward  for  their  §  263. 

services.  5  See   notes   to   Scott   v.   Tyler,    2 

3  Hall  V.  Potter,  3  Lev.  411;  1  Eq.  Lead.  Cas.  Eq.  105. 

Cas.  Ab.  89;  3  P.  Wms.  76;  Shower's  8  \s  to  trusts  for  future  separation, 

Pari.  Cas.  76;  Boynton  v.  Hubbard,  7  see  ante,  §  115. 

Mass.  112.  7  Lowe  v.  Peers,  4  Burr,  2225. 

*Cole  V.  Gibson,   1  Yes.  Sr.  503;  s  Baker  v.  White,  2  Vem.  215. 


348  FRAUD.  [part   II. 

'2'2i).  Gifts  in  restraint  of  marriage  ;  rule  of  the  Roman 
Law. 

Gifts  ill  restraint  of  marriage,  that  is,  gifts  bestowed  upon 
condition  that  they  are  to  be  forfeited  in  the  event  of  marriage 
in  general,  or  of  some  particular  marriage,  are  of  frequent 
occurrence,  and  may  ])roperly  be  noticed  in  this  connection. 
The  authorities  upon  this  subject  are  not  all  to  be  reconciled, 
and  it  is  difficult  to  state  the  law  with  entire  precision.  This 
confusion  has  arisen  from  the  attempts  to  import  the  doctrine 
of  the  civil  law  upon  this  subject  into  the  law  of  England.^ 

The  civil  law  rule  was  that  conditions  in  restraint  of  mar- 
riage were  void. 

The  origin  of  the  rule,  as  stated  by  the  chancellor  (Lord 
Loughborough)  in  Stackpole  v.  Beaumont,'  was  that  in  the 
Roman  Empire  the  depopulation  occasioned  by  the  civil  war 
led  to  habits  of  celibacy;  and  to  correct  this  evil,  in  the  time 
of  Augustus,  the  Julian  law  (which  went  too  far  and  was  cor- 
rected by  the  Lex  Papia  Poppre),  not  only  offered  encourage- 
ment to  marriage,  but  laid  heavy  impositions  upon  celibacy. 
To  impose  even  partial  restraints  therefore  upon  marriage  was 
to  act  directly  contrary  to  this  law,  and  hence  such  restraints 
w'ere  necessarily  invalid. 

No  such  reasons  existed  at  common  law,  and  hence,  so  far  as 
real  estate  was  concerned,  the  rule  of  the  civil  law  was  not 
followed,  except  that  conditions  in  entire  restraint  of  marriage 
were  considered  opposed  to  the  policy  of  the  law,  and  therefore 
void.'"*  But  the  succession  to  personalty  having  fallen  into  the 
hands  of  the  ecclesiastical  courts,  and  these  having  a  great 
leaning  towards  the  Roman  law,  the  rule  as  to  that  species 
of  property  was  the  same  as  in  the  civil  law.'*  The  tendency, 
however,  of  modern  decisions  is  to  bring  the  law  in  regard  to 
personalty,  in  this  particular,  in  accord  with  the  doctrines 
applicable  to  real  estate. 

226.  Conditions  in  general  restraint  of  marriage. 

In  considering  this  subject  it  will  be  convenient  to  notice,  in 

1  See  notes  to  Scott  v.  Tyler,  2  Hare  [1895],  570;  1  Ch.  449;  notes 
Lead.  Cas.  Eq.  208  (4th  Eng.  ed.),  to  Scott  r.  Tyler,  2  Lead.  Cas.  Eq. 
and  Hampton  v.  Nourse  [1899],  1  Ch.       215  (4th  Eng.  ed.). 

G3.  *  See    Stackpole    v.    Beaumont,    3 

2  3  Ves.  96.  Ves.  96. 

3  See     Morley    v.    Rennoldson,     2 


CH.  II.] 


FRAUD. 


349 


the  first  place,  conditions  in  general  or  entire  restraint  of  mar- 
riage; and,  secondly,  those  in  partial  restraint. 

A  condition  annexed  to  a  gift  entirely  restraining  the  donee 
from  marriage  is  void  as  against  public  policy ;  ^  and  the  donee 
will  take  the  gift  free  and  discharged  from  the  condition.  So 
far  as  conditions  subsequent  are  concerned,  there  is  no  differ- 
ence as  to  this  rule  between  realty  and  personalty.-  But  in  con- 
ditions precedent,  although  the  condition  be  illegal  or  impos- 
sible, an  estate  in  realty,  according  to  the  common  law,  could 
never  vest  unless  the  condition  were  complied  with.  Hence, 
if  an  estate  in  land  is  given  when,  or  as  soon  as,  the  donee  shall 
marry  a  particular  person,  the  estate  cannot  vest  until  the  mar- 
riage takes  place.  If  the  subject  of  the  gift,  however,  is  per- 
sonalty, the  condition  although  precedent  being  void,  the  donee 
will  take  it  absolutely.^ 

The  circumstance  that  there  is  a  gift  over  upon  non- 
compliance with  the  condition,  will  make  no  difference  in  the 
application  of  the  above  rules  in  regard  to  total  restraints.'* 

227.  Conditions  in  partial  restraint. 

Where  the  condition  is  only  in  partial  restraint — as  where 
it  is  against  marrying  a  particular  person,  or  before  arriving 
at  a  particular  age  (provided  the  period  to  which  the  marriage 
is  postponed  be  reasonable) — it  is  valid,  and  will  be  enforced  if 
there  is  a  gift  over.  And  this  is  the  rule  as  respects  realty,  al- 
though there  is  no  gift  over.  But  in  regard  to  personalty  the 
rule  is  different,  and  a  condition  in  partial  restraint  of  marriage, 
if  there  is  no  gift  over,  will  be  held  to  be  (as  it  is  said)  in  ter- 
rorem  only,  and  will  not  defeat  the  estate.^     It  was,  however, 


1  Smythe  v.  Smythe,  90  Va.  638. 

2  Morley  r.  Rennoldson,  2  Hare, 
570;  notes  to  Scott  v.  Tyler,  svpra. 

3  Keily  v.  Monck,  3  Ridg.  P.  C.  205; 
Maddox  v.  Maddox,  11  Gratt.  804. 

*  See  Morley  v.  Rennoldson,  2 
Hare,  570.  But  see  Overton  v.  Lea, 
108  Tenn.  505. 

5  Harvey  v.  Aston,  1  Atk.  378; 
Mcllvaine  v.  Gethen,  3  Whart.  575; 
Hoopes  V.  Dundas,  10  Pa.  75;  Hotz's 
Estate,  38  Id.  422;  Cornell  v.  Lovett, 
35  Id.  100;  Maddox  v.  Maddox,  11 
Gratt.   804;    Waters   v.   Tazewell,    0 


Md.  291;  Hill  on  Trustees,  496  (775, 
4th  Am.  ed.).  Where  a  cestui  que 
trust  is  given  the  income  of  a  fund 
"during  the  term  of  her  natural  Ufe 
or  so  long  as  she  remains  unmarried  " 
with  a  gift  over  "  in  case  of  her  death 
or  marriage  "  the  gift  is  upon  a  lim- 
itation in  favor  of  the  cestui  que  trust 
during  the  period  she  remains  un- 
married and  is  valid.  Such  a  pro- 
vision is  not  to  be  construed  as  an 
unlawful  condition  in  restraint  of 
marriage.  Holbrook's  Estate,  213 
Pa.  93. 


350 


FRAUD. 


[part  11. 


held  by  Sir  Wm.  Page  Wood,  then  vice-chancellor,  in  Newton 
V.  Marsden,  that  a  condition  in  restraint  of  marriage  attached 
to  a  legacy  to  the  widow  of  the  testator's  nephew  was  valid. ^ 

If  the  condition  in  partial  restraint  is  precedent,  it  will  be 
enforced,  even  if  there  is  no  limitation  over.^ 

Restraints  upon  marriage  may  sometimes  be  enforced  by  way 
of  limitation,  when  they  would  be  ineffectual  if  put  in  the 
shape  of  conditions.  A  testator  may  make  the  period  of  enjoy- 
ment of  his  bounty  as  short  as  he  pleases,  and  may  fix  the 
occurrence  or  non-occurrence  of  any  event,  no  matter  how  ab- 
surd or  arbitrary  the  limitation  may  be,  as  the  boundary  at 
which  the  estate  is  to  cease.  In  such  a  case  the  particular 
estate  will  come  to  an  end  by  virtue  of  its  own  limitation,  and 
the  estate  in  remainder  will,  of  course,  vest  in  possession. 

If,  then,  an  estate  be  given  to  A.  until  she  marries,  and  from 
and  after  her  marriage  to  B.,  the  marriage  of  A.  would  not 
operate  to  defeat  an  estate  already  vested,  but  would  simply 
mark  the  period  at  which  a  vested  estate  of  uncertain  duration 
is  to  determine.^  In  such  a  case  the  law  of  conditions  has  no 
place.  Hence,  it  is  settled  that  a  gift  durante  viduitate,  with  a 
limitation  over,  is  valid;  and  that  upon  marriage  of  the  widow 
the  party  in  remainder  will  take.'' 

The  real  principle  of  cases  of  this  kind  is,  that  the  condition 
is  not  regarded  as  an  arbitrary  prohibition  of  marriage  alto- 
gether, but  the  conditional  gift  is  considered  as  made  to  the 
widow,  because  she  is  a  widow,  and  because  the  circumstances 
would  be  entirely  changed  if  she  entered  into  a  new  relation.^ 

It  may  be  added  that  it  has  been  decided  in  England  that  a 
valid  restraint  may  be  imposed  upon  the  second  marriage  of  a 
man  as  well  as  upon  that  of  a  woman.  The  case  arose  for  the 
first  time  in  1875  in  Allen  v.  Jackson,^  and  it  was  there  held 


12  Johns.  &  H.  356.  See,  also, 
Commonwealth  v.  Stauffer,  10  Pa. 
;i5();  McCullough's  Appeal,  12  Id.  297; 
Phillips  V.  Medbury,  7  Conn.  568; 
Herd  v.  Catron,  97  Tenn.  662. 

2  Stackpole  v.  Beaumont,  3  Ves.  89; 
Hill  on  Trustees,  496. 

3  See  Fearne  on  Cont.  Rem.  10;  In 
re  King's  Trusts,  29  L.  R.  Ir.  401; 
Greene  v.  Kirkwood  [1895],  1  Ir.  R. 
Ch.  130,  142. 


*  See  Vance  v.  Campbell's  Heirs,  1 
Dana,  229;  Pringle  v.  Dunkley,  14 
Sm.  &  M.  16;  Hughes  v.  Boyd,  2 
Sneed,  512;  Chapin  v.  Cooke,  73 
Conn.  72;  notes  to  Scott  v.  Tyler,  2 
Lead.  Cas.  Eq.  412  (3d  Am.  ed), 
where  this  rule  is  somewhat  criti- 
cised by  the  learned  American  editor. 

^  Per  Wood,  V.  C,  in  Newton  v. 
Marsden,  2  Johns.  &  H.  367. 

8  L.  R.  1  Ch.  Div.  399. 


CH.  II.] 


FRAUD. 


351 


that  where  a  testatrix  gave  property  to  her  niece  and  her  niece's 
husband,  with  a  proviso  that  if  the  husband  survived  the  niece 
and  married  again  the  property  should  go  over,  the  proviso  was 
vaUd  and,  on  the  husband's  second  marriage,  the  gift  over  took 
effect.^ 


228.  Contracts  in  restraint  of  trade. 

Still  another  class  of  contracts,  which  are  illegal  because  of 
their  nature,  is  that  of  contracts  in  unreasonable  restraint  of 
trade. 

The  doctrine  is  a  very  old  one,  a  case  being  found  in  tlic 
year  books,-  in  which  Mr.  Justice  Hall  lost  his  temper  at  the 
very  sight  of  the  bond,  and  exclaimed  with  an  oath,  that  if  the 
plaintiff  had  been  in  court  he  should  have  gone  to  prison  until 
he  had  paid  a  fine. 

The  leading  authority  upon  the  subject  is  Mitchell  v.  Rey- 
nolds,^ from  which,  and  from  subsequent  authorities  in  England 
and  in  this  country,  the  doctrine  has  been  said  to  be  that  a  re- 
straint upon  trade,  in  order  to  be  good  at  law,  must  be,  in  the 
first  place,  partial;  ^  in  the  second  place,  reasonable — that  is,  such 
a  restraint  only  as  may  be  necessary  to  protect  the  business  of 
the  party  for  whose  benefit  the  contract  is  made;''  and,  thirdly, 
founded  on  a  valuable  consideration,  although  as  to  this  last 
point  it  is  now  settled  that  the  courts  will  not  enter  into  the 
ciuestion  of  adequacy  of  consideration,  unless,  ])erhaps,  the  in- 
adequacy is  such  as  to  stamj)  the  agreement  as  an  unreason- 
able one.^ 

Within  the  last  few  years,  however,  a  change  has  taken  place  in 
the  views  expressed  by  judges  as  to  the  test  of  illegality  in  con- 
tracts in  restraint  of  trade;  and  th(^  true  criterion  is  now  said 


1  Appleby  v.  Appleby,  100  Minn. 
408. 

2  2  Hen.  V.,  Term.  Pa.sch.  pi.  2f>. 
See    Davies    r.    Davies,    o6   Cli.    D. 

M  P.  Wms.  ISl. 

*  Gamewell  Fire  .\larm  Tol.  Co.  ?-. 
Crane,  160  Mass.  .50;  Turner  r.  Ab- 
bott, 116  Tenn  71S;  Harris  r.  Theus, 
149  Ala.  13.'}. 

5  See  Perls  r.  Saalfeid  [1892],  2  Ch. 
149;  annotated  in  o2  Am.  L.  Rej^. 
p.  50;  United  States  v.  Trans-Miss. 


Freight  \.ssn.,  19  U.  S.  App.  36- 
(>0;  HuLse  r.  Bonsack  Machine  Co., 
2.5  Id.  239;  Oakdale  Manuf.  Co.  v. 
(iarst,  18  R.  I.  484;  (ietz  r.  Federil 
Salt  Co.,  147  Cal.  11.5;  Southern  Fire 
Brick  Co.  v.  Sand  Co.  223  HI.  616; 
Bradford  ?•.  Furniture  Co.,  115  Tenn. 
610. 

^  See  notes  to  Mitchel  v.  Rejiiolds, 
1  Sm.  Lead.  Cas.  705.  and  note  to 
Zimmerman  i.  Davis,  23  Am.  L.  Reg. 
52.  See,  also,  Ryan  v.  Hamilton,  205 
HI.  191. 


352 


FRAUD. 


[part  II. 


to  be,  not  whether  the  restraint  is  general  or  partial,  but  whether 
it  is  reasonable  or  unreasonable.  The  subject  was  examin(-(i  in 
Nordenfelt  v.  The  Maxini-Nordenfelt  Guns  and  Am.  Co.,  Ltd.,^ 
and  the  conchision  reached  that  whether  a  contract  was  invalid 
because  in  restraint  of  trade  must  depend  upon  whether,  on  con- 
sidering all  the  circumstances,  the  contract  is  found  to  bo 
reasonable  or  unreasonable  .' 

A  contract  in  restraint  of  trade  which  is  unreasonable  in  the 
eye  of  the  law,  cannot  (upon  the  general  principles  already  re- 
ferred to)  be  enforced  in  e(iuity,  and  an  instrument  given  to 
secure  such  an  agreement  may  be  decreed  to  be  delivered  up 
and  cancelled. 

Equity,  moreover,  is  loth  to  enforce  a  contract  in  restraint  of 
trade,  even  although  it  be  good  at  law,  if  the  terms  are  hard  or 
even  complex.^ 

Thus,  in  a  Pennsylvania  case,  the  defendant,  in  consideration 
of  the  complainant's  instructing  him  in  the  art  of  making  plat- 
form scales,  and  of  employing  him  at  a  certain  sum  per  diem, 
agreed  not  to  make  said  scales  for  any  person  other  than  the 
plaintiff  (except  with  the  latter 's  written  consent)  upon  a 
penalty  for  each  scale  manufactured  in  violation  of  the  agree- 
ment. The  defendant  broke  the  contract,  and  the  plaintiff 
then  filed  a  bill  for  an  account  and  payment.  The  prayer  was 
refused  and  the  bill  dismissed,  not  only  on  the  ground  that  the 
condition  was  one  in  general  restraint  of  trade,  and  therefore 
void  at  law,  but  also  because  "a  chancellor  would  regard  the 
hardship  of  the  bargain  and  the  prejudice  to  the  public,  and 
would  withhold  his  hand  from  enforcing  it,  for  such  decrees  are 
always  of  grace  and  not  of  right."  "* 


1  [1894]  A.  C.  535. 

2  See  the  account  of  the  doctrine  in 
question  and  of  the  modern  view 
thoref)f  by  Mr.  Justice  White  in  his 
dissenting  opinion  in  United  States 
V.  Freight  Association,  166  U.  S.  290- 
346  et  seq.  See,  also,  Matthews  v. 
Associated  Press,  136  N.  Y.  333; 
Trenton  Potteries  Co.  v.  Oliphant,  58 
N.  J.  Eq.  507,  and  U.  S.  v.  Addyston 
Pipe  &  Steel  Co.,  54  U.  S.  App.  753; 
Swigert  v.  Tilden,  121  la.  650.  Such 
only  as  to  afford  fair  protection  to 
the,  interests  of  the  party  in  whose 


favor  it  is  given  and  not  so  large  as 
to  interfere  with  the  interests  of  the 
public.  Merriman  v.  Cover,  104  Va. 
428;  Kradwell  v.  Thiesen,  131  Wis. 
97;  Frame  v.  Ferrell,  166  Fed.  Rep. 
702. 

3  Kimberley  v.  Jennings,  6  Sim. 
340;  Kemble  v.  Kean,  Id.  335;  Whit- 
taker  V.  Howe,  3  Beav.  383;  Kerr  on 
Injunctions,  506,  514;  post,  Part  III., 
Chap.  II.  See,  also.  Mineral  Water 
Society  v.  Booth,  36  Ch.  D.  465. 

<  Keeler  v.  Taylor,  53  Pa.  467.  See 
further  as  to  contracts  of  this  kind 


CH.  II.] 


FRAUD. 


353 


Contracts  in  restraint  of  trade,  however,  if  they  are  reason- 
able, and  not,  because  of  any  special  stipulations  therein,  or  of 
any  circumstances  of  hardship  under  which  they  were  executed, 
unjust  or  inequitable,  will  be  enforced  in  equity.^ 

Combinations  entered  into  for  the  purpose  of  preventing  the 
parties  thereto,  or  others,  from  engaging  in  trade,  are  illegal.' 

Thus,  in  the  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,^  a  con- 
tract was  entered  into  between  five  coal  companies,  by  which  it 
was  agreed  that  the  coal  market  in  certain  regions  was  to  be 
divided  among  the  contracting  parties  in  certain  proportions, 
with  a  proviso  that  the  several  companies  should  sell  coal  only  to 
the  extent  of  their  proportion,  and  only  at  prices  adjusted  by  a 
committee.  The  result  of  this  combination  was  to  control  the 
value  of  coal  in  an  extensive  market,  and  to  cause  it  to  bring 
prices  which  it  would  not  have  commanded  had  it  been  left  to 


Gompers  v.  Rochester,  56  Id.  194; 
McClurg's  Appeal,  58  Id.  51;  Hall's 
Appeal,  60  Id.  458;  Harkinson's  Ap- 
peal, 78  Id.  196;  Andrews  v.  Kings- 
bury, 212  III.  97;  Lanzit  v.  Sefton 
Mfg.  Co.,  184  Id.  .326;  Shute  v.  Heath, 
131  N.  C.  281  (where  the  contract  was 
held  void  because  of  indefiniteness  as 
to  territory).  Roberts  v.  Lemont,  7:5 
Neb.  365. 

1  Morris  v.  Colman,  18  Ves.  437; 
Nordenfelt  v.  Maxim-Nordenfelt  Guns 
&  Am.  Co.,  Ltd.  [1894],  A.  C.  535; 
Mogul  S.  S.  Co.  V.  McGregor  [1892], 
A.  C.  25;  Dubowski  v.  Goldstein 
[1896],  1  Q.  B.  478;  Underwood  v. 
Barker  [1899],  1  Ch.  3(K);  Morse  v. 
Morse,  103  Mass.  73;  Taylor  v. 
Blanchard,  13  Allen,  370;  Leather 
Cloth  Co.  V.  Lorsont,  L.  R.  9  Eq.  345. 
See  Cruttwell  v.  Lye,  17  Ves.  335; 
AHsopp  V.  Wheatcroft,  L.  R.  15  Eq. 
59;  Pickett  v.  Green,  120  Ind.  584; 
Consumers'  Oil  Co.  ik  Nunnemaker, 
142  Ind.  560;  Carter-Crume  Co.  v. 
Pcurrung,  30  C.  C.  A.  174;  Central 
Trust  Co.  V.  Continental  Trust  Co., 
Id.  235,  and  Harrison  v.  Glucose 
Sugar  Refining  Co.,  53  Id.  489; 
Monongahela  Coal  Co.  v.  Jutte,  210 
Pa.  288;  United  Shoe  Co.  v.  Kimball, 

23 


193  Mass.  351.  Except  within  a  very 
narrow  limit  contracts  in  restraint 
of  trade  are  invalid  under  the  .stat- 
utes of  Oklahoma.  Hulen  v.  Earel, 
13  Okla.  246. 

2  Story's  Eq.  §292;  Stanton  v. 
Allen,  5  Denio,  434;  .  Hilton  v. 
Eckersley,  32  Eng.  L.  &  Eq.  198;  34 
Id.  224;  Deuber  Watch  Case  Man. 
Co.  ?'.  Howard  Co.,  35  U.  S.  App.  16, 
28,  40;  Nester  v.  Continental  Br.  Co., 
161  Pa.  473;  Clark  v.  Needham,  125 
Mich.  84;  Tuscaloosa  Ice  Manuf.  Co. 
I'.  Williams,  127  Ala.  110;  Fullington 
V.  Kyle  Lumber  Co.,  139  Ala.  242; 
Webb  Press  Co.  v.  Bierce,  116  La. 
900. 

:'  68   Pa.    173.     See,   also,   Oregon 
Steam  Nav.  Co.  v.  Winsor,  20  Wall. 
64;   Maguire   r.   Smock,   42  Ind.    1 
Bowen   v.   Matheson,    14   Allen,   99 
Carew  v.   Rutherford,    106  Mass.    1 
Gale  V.   Kalamazoo,   23   Mich.   344 
Sampson  v.  Shaw,  101  Mass.  145  (an 
agreement  to  corner  stocks) ;  Craw- 
ford ?'.  Wick,  18  Ohio  St.  190;  State 
V.  Armour  Packing  Co.,  173  Mo.  356. 
See  comment  on  case  in  Mononga- 
hela Coal  Co.  V.  Jutte,  210  Pa.  299; 
Pocahontas  Coke  Co.  v.  Coal  Co.,  60 
W.  Va.  508. 


354 


FRAUD, 


[part  II. 


the  natural  laws  of  trade.  It  was  therefore  held  that  a  com- 
bination so  wide  in  its  scope,  general  in  its  influence,  and  in- 
jurious in  effects,  was  a  contract  against  public  policy,  illegal, 
and,  therefore,  void.* 

In  the  C'hicago  Gas  Light  Co.  v.  People's  Gas  Light  Co.^  a 
similar  decision  was  made.  There  the  plaintiff,  a  gas  manufac- 
turing corporation,  had  been  granted,  from  February  12,  1849, 
the  exclusive  privilege  of  supplying  the  city  of  Chicago  with  gas 
for  ten  years,  by  its  charter.  The  defendant,  another  gas  man- 
ufacturing corporation,  had  been  granted  this  privilege  at  the 
expiration  of  the  ten  years.  By  contract  of  April  21,  1862,  the 
two  companies  divided  the  city,  and  agreed  not  to  compete  in 
each  other's  territory.  The  agreement  was  held  void  as  in  re- 
straint of  trade. ^  Indeed,  the  question  as  to  the  validity  of 
such  contracts  in  restraint  of  trade  has,  within  the  past  few 
years,  grown  to  great  importance.  The  conmiercial  combina- 
tions known  as  "trusts"  are  of  very  modern  growth,  and  their 
legality  has  been  but  lately  passed  upon.''  The  case  of  The 
People  V.  The  North  River  Sugar  Refining  Co.,^'  more  shortly 
known  as  the  "Sugar  Trust"  case,  may  be  taken  as  an  example, 
although  the  ultimate  decision  in  that  case  was  based  upon  the 


1  See,  also,  Ch.,  Mil.  &  St.  P.  Ry. 
Co.  V.  Wab.,  St.  L.  &  Pac.  Ry.  Co.,  27 
U.  S.  App.  1 ;  More  v.  Bennett,  140 
111.  60  (a  combination  among  stenog- 
raphers); Judd  V.  Harrington,  139 
N.  Y.  105;  Arnot  v.  Pittston  &  Elmira 
Coal  Co.,  68  N.  Y.  558;  Bailey  r. 
Master  Plumbers,  10.3  Tenn.  99; 
Cummings  v.  Union  Blue  Stone  Co., 
164  N.  Y.  401 ;  Cohen  v.  Berlin  and 
.Jones  Envelope  Co.,  166  N.  Y.  292; 
Employing  Printers'  Club  ?'.  Doctor 
Blossner  Co.,  122  da.  509;  and,  upon 
the  general  subject,  Hoffman  v. 
Brooks,  2.3  .\m.  Law  Reg.  648,  and 
note;  article  in  24  Id.  217  and  281; 
De  Witt  Wire  Cloth  Co.  v.  N.  J.,  etc., 
Co.,  14  N.  Y.  Sup.  277;  Park  v. 
Nat.  Druggists'  .\ssn.,  175  N.  Y.  1; 
Chicago  Coal  Co.  v.  People,  214  111. 
421;  Hunt  v.  Riverside  Club,  140 
Mich.  .5.38;  Finck  v.  Granite  Co.,  187 
Mo.  244. 


2  121  111.  530. 

3  See,  also,  Charleston  Gas  Co.  v. 
Kanawha  Gas  Co.,  58  W.  Va.  22; 
State  ex  rel.  v.  Portland  Nat.  Gas  Co., 
153  Ind.  483;  essay  by  Prof.  Geo. 
Stuart  Patterson  on  "Contracts  in 
Restraint  of  Trade,"  Philadelphia, 
1891;  Keene  v.  Gas  Co.,  69  Kan. 
284. 

^  It  need  scarcely  be  said  that  the 
word  "trusts,"  when  used  to  desig- 
nate a  commercial  venture  of  this 
kind,  bears  a  different  meaning  from 
that  in  which  it  is  technically  used  in 
equity.  By  "  trust "  as  here  used  is 
meant  a  combination  whereby  in- 
terests in  corporations  or  firms,  which 
unite  in  a  common  enterprise,  are 
deposited  with  trustees,  the  owners 
receiving  in  return  interests  in  the 
general  organization. 

5  54  Hun,  354;  121  N.  Y.  585. 


CH.  II.J 


FRAUD. 


355 


ahiisp  of  corporate  powers — not  upon  the  illegality  of  the  contract. 
There,  proceedings  were  instituted  to  forfeit  the  charter  of  the 
corporation  defendant,  on  the  ground  of  abuse  of  its  })owers  by 
the  practical  surrender  of  its  corporate  independence,  and  be- 
cause of  the  illegality  of  the  arrangement  into  which  it  had 
entered  with  other  sugar  companies.    This  arrangement  was  in 
substance  a  partnership  based  upon  a  trust  deed,  under  the 
provisions  of  which  the  stock  of  the  corporations  which  en- 
tered into  the  combination  was  turned  over  to  a  board  of  di- 
rectors, in  return  for  which  certificates  of  holdings  in  the  central 
organization  were  issued  to  the  shareholders  in  the  different 
corporate  members  thereof.    The  output  of  any  one  corporation, 
member  of  the  combination,  was  regula.ted  by  the  trustees;  and 
the  earnings  of  all  were  to  be  turned  over  to  the  trustees,  by 
whom  dividends  on  the  trust  shares  were  to  be  declared.    This 
arrangement  was  held  illegal  in  the  lower  court  in  an  opinion 
of  great  legal  force  by  Judge  Barrett;  and  this  ruling  was  af- 
firmed, on  the  same  ground,  by  the  Appellate  Division  of  that 
court.     In  the  Court  of  Appeals,  however,  while  the  decision 
was  affirmed,  the  affirmance  was  put  upon  the  ground  of  abuse 
of  corporate  powers.    The  ground  taken  by  Judge  Barrett,  how- 
ever, would  appear  to  be  sound ;  and  his  ruling  not  only  follows 
that  of  the  Supreme  Court  of  Pennsylvania  in  the  Morris  Run 
Coal  Co.  Case,  cited  above,  but  is  in  accord  with  the  judgment 
in  the  Chicago  Gas  Trust  Case,  where  the  decision  was  put 
expressly  on  the  ground  of  the  illegality  of  the  contract.^    Other 
decisions  are  to  the  same  effect."    The  basis  of  these  decisions 
would  seem  to  be  the  danger  to  public  interests;  and  where  the 
public  is  not  thus  threatened,  contracts  limiting  production  have 
been  sustained.'"*     Where,  however,  the  contract  cannot  stand 


1  People  ex  rel.  Peabody  v.  Cliicago 
Gas  Trust  Co.,  130  111.  2G8.  See  arti- 
cle on  "  The  Legality  of  Trust  Combi- 
nations," by  Louis  Bossot,  Jr.,  Am. 
Law  Reg.  Nov.  &  Dec.  1891,  p.  751; 
and  essay  of  Prof.  Geo.  Stuart  Pat- 
terson, supra. 

-  Arnot  V.  Pittston  &  Elmira  Coal 
Co.,  68  N.  Y.  558;  Craft  ?'.  McCon- 
oughy,  79  111.  346;  Distillery  &  Cattle 
Feeding  Co.  r.  The  People,  156  111. 
448,  48(3;  State  r.  Standard  Oil  Co.,  49 
Ohio  St.  137;  Texas  Stand.  Oil  Co.  v. 


Adoue,  83  Tex.  650;  Central  Salt  Co. 
V.  Guthrie,  35  Ohio,  666;  Collins  v. 
Locke,  4  App.  Cas.  674;  Mill  &  Lum- 
ber Co.  V.  Hayes,  76  Cal.  387;  Dun- 
bar V.  American  Telephone  Co.,  224 
111.  9;  Southern  Electric  Co.  v.  State, 
91  Miss.  195. 

^  Collins  V.  Locko,  4  App.  Cas.  674; 
Skrainka  ?'.  Scharringhausen,  8  Mo. 
App.  522;  Diamond  Match  Co.  v. 
Rocber,  106  N.  Y.  473;  Leslie  v.  Lor- 
illard,  110  Id.  519;  Ontario  Salt  Co. 
V.  Merchants'    Salt  Co.,    18  Grant's 


856 


FRAUD. 


[part  II. 


such  a  test,  it  must  fall.  A  contract  (for  example)  whereby  a 
corporation  chartered  to  perform  the  duties  of  a  conmion  car- 
rier, or  any  other  duties  to  the  public,  agrees  that  it  will  not 
perform  those  duties  at  all,  anywhere,  for  ninety-nine  years,  is 
clearly  unreasonable  and  void.^  Such  was  the  decision  of  the 
Supreme  Court  of  the  United  States;  and  the  judgment  would 
seem  to  be  based  on  good  morals  as  well  as  sound  law. 

Upon  the  same  general  principle,  bonds  restraining  the  right 
of  alienation  have  been  ordered  to  be  delivered  up,  as  opposed 
to  public  policy. 2 

The  policy  of  the  law  upon  the  subject  of  combinations  of 
the  character  spoken  of  in  this  section,  was  expressed  in  the 
form  of  a  statute  by  the  passage,  in  1890,  of  an  Act  of  Con- 
gress to  "protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies."  ^  Under  this  statute  it  has  been  held 
that  the  prohibitions  contained  in  the  act  apply  to  all  contracts 
in  restraint  of  interstate  or  foreign  trade  or  conuncrce,  without 
exception  or  limitation,  and  are  not  confined  to  those  in  which 
the  restraint  is  unreasonable.''    The  scope  and  extent  of  this  stat- 


Ch.  Rep.  540;  Kellogg  r.  Larkin,  .3 
Chand.  133;  Fowle  v.  Park,  131  U.  S. 
88,  97.  See,  however,  Richardson  v. 
Buhl,  77  Mich.  632.  The  question 
is  whether  the  restraint  affords  more 
than  a  fair  and  reasonable  protection 
to  the  party  in  whose  favor  it  is  im- 
posed. Bancroft  r.  Company,  72 
N.  H.  402. 

1  See  the  language  of  Mr.  Justice 
Gray,  in  Central  Transp.  Co.  r.  Pull- 
man's C^ar  Co.,  139  U.  S.  54.  See, 
also,  the  cases  cited  by  him,  viz., 
Oregon  Steam.  Nav.  Co.  v.  Winsor, 
20  Wall.  64;  (libbs  v.  Baltimore  Gas 
Co..  130  V.  S.  398,  408-410,  and  the 
language  of  Mr.  Justice  Peckham,  in 
Pullman  Car  Co.  v.  Central  Transp. 
Co.,  171  U.  S.  145-161. 

2  Jervis  r.  Bruton,  2  Vcrn.  251 ; 
Freeman  v.  Freeman,  Id.  233;  Poole's 
Case  (cited),  Moor,  810. 

3  26  Stat.  209,  c.  647. 

^  United  States  v.  Trans-Missouri 
Freight  Association,  166  U.  S.  290, 
approved  in  United  States  v.  Joint 


Traffic  Assn.,  171  U.  S.  505.  In 
Addyston  Pipe  &  Steel  Co.  i^  United 
States,  175  U.  S.  238,  it  was  found  as 
a  fact  that  the  combination  was  un- 
reasonable and  it  was  therefore  un- 
necessary to  consider  the  proposition 
stated  in  the  foregoing  cases.  See, 
also,  Gibbs  v.  McNeeley,  55  C.  C.  A. 
70,  and  Northern  Securities  Co.  r. 
United  States,  193  U.  S.  360  (Mr. 
Justice  Brewer).  See,  in  this  con- 
nection, Hopkins  v.  United  States, 
171  Id.  578,  and  Anderson  r.  United 
States,  Id.  604.  In  Montague  v. 
Lowry,  193  U.  S.  38,  these  last  men- 
tioned cases  were  distinguished  and 
the  case  of  Ackly.ston  Pipe  &  Steel  Co. 
r.  United  States  (supra)  was  fol- 
lowed. See  Continental  Wall  Paper 
Co.  r.  Voight,  212  U.  S.  227;  Swift 
&  Co.  7'.  United  States,  196  U.  S.  375; 
United  State ;  r.  American  Tobacco 
Co.,  164  Fed.  Rep.  700;  Locwe  r. 
Lawler,  208  U.  S.  274. 

An   agreement   by   which   in   con- 
sideration   of   a    very    large    sum    of 


CH.  II.] 


FRAUD. 


357 


ute  was  recently  considered  in  Northern  Securities  Co.  v.  United 
States ;  ^  and  the  conclusions  reached  in  the  cases  just  cited  were 
approved  in  the  opinion  of  the  court  as  delivered  by  Mr.  Justice 
Harlan.^  In  that  opinion  it  was  said  that  the  Act  of  Congress 
is  not  limited  to  restraints  of  interstate  and  international  trade 
or  connner(^e  that  are  unreasonable  in  their  nature,  but  embraces 
all  direct  restraints  imposed  by  any  combination,  conspiracy 
or  monoj)oly  upon  such  trade  or  conmierce;  that  every  combi- 
nation or  conspiracy  which  would  extinguish  competition  be- 
tween otherwdse  competing  railroads  engaged  in  interstate  trade 
or  commerce  and  which  would  in  that  way  restrain  such  trade 
or  commerce,  is  made  illegal  by  the  act;  and  that  the  natural 
effect  of  competition  is  to  increase  commerce,  and  an  agreement 
the  direct  effect  of  which  is  to  prevent  .this  play  of  competition 
restrains  instead  of  promotes  trade  and  commerce. 

229.  Sales  of  public  offices. 

The  last  of  the  contracts  which  will  be  noticed  as  being  void 
on  the  ground  of  illegality  in  their  subject-matter,  are  contracts 
for  the  procurement  of  sale  of  public  offices.  Sir  John  Strange, 
M.  R.,  in  his  opinion  in  Chesterfield  v.  Janssen,^  says:  "So,  in 
bargains  to  procure  offices,  neither  of  the'  parties  is  defrauded 
or  unapprised  of  the  terms,  but  it  seems  to  introduce  unworthy 
objects  into  public  offices;  and,  therefore,  for  the  sake  of  the 
public  the  bargain  is  rescinded."  '* 


money  the  owner  of  coal  lands,  coal 
mines,  and  coal  boats  sells  the  same 
and  covenants  not  to  engage  directly 
or  indirectly  "in  the  business  of 
mining,  marketing  or  shipping  of 
coal  in  the  territory  traversed  by 
the  Monongahela,  Ohio  and  Missis- 
sippi rivers  and  their  tributaries  for 
a  period  of  ten  years  from  the  date 
hereof"  is  a  reasonable  contract  and 
is  not  contrary  to  the  public  policy 
of  Pennsylvania,  although  it  appears 
that  the  purchaser  had  similar  con- 
tracts with  a  large  number,  although 
not  all  of  the  coal  operators  and 
shippers  doing  business  in  the  Mo- 
nongahela valley  in  Pennsylvania. 
The  above  contract,  in  so  far  as  it 
affects    business    carried    on    in    the 


territory  contiguous  to  the  Ohio  and 
Mississippi  rivers  outside  of  the 
limits  of  Pennsylvania,  violates  the 
Act  of  Congress  of  July  2,  1890, 
known  as  the  anti-trust  or  Sherman 
Act.  The  contract  is,  however,  di- 
visible and  the  seller  may  be  en- 
joined from  engaging  in  tlie  business 
of  mining  coal  and  marketing  or 
shipping  coal  on  the  Monongahela 
river  within  the  state  of  Pennsyl- 
vania for  the  period  of  ten  years. 
Monongahela  Coal  Co.  v.  Jutte,  210 
Pa.  288. 

1  193  U.  S.  197. 

2  Id.  328. 

^  1  Atk.  .301.     See,  also,  Boynton 
V.  Hubbard,  7  Mass.  119. 

4  See  Basket  v.  Moss,  115  N.  Car. 


358 


FRAUD. 


[part  II. 


The  conduct  of  equity  in  such  a  ease  is  but  in  accordance 
with  a  general  principle  by  which  Courts  of  Chancery,  and, 
indeed,  every  other  tribunal,  would  discourage,  in  every  way, 
contracts  opposed  to  good  morals  and  sound  public  policy. 
The  examples  of  illegal  contracts  already  given  are  but  in- 
stances of  this  general  principle;  and  it  might  not  be  too  much 
to  say  that  in  every  case  where  rules  of  public  policy  are  violated, 
and  where  relief  could  be  afforded  by  the  machinery  of  a  Court 
of  Chancery,  and  where  a  full,  adequate,  and  complete  remedy 
could  not  be  had  at  common  law,  equity  will  interpose  for  the 
purpose  of  restraining  an  action  brought  to  enforce  such  a  con- 
tract, or  to  compel  the  surrender  of  the  instrument  by  which 
it  has  been  secured.^ 


SECTION   III. 


FRAUD  PRESUMED  FROM  THE  RELATIONS  OF  THE  PARTIES. 


230.  Mental  disability;  drunkenness; 

d  ureas. 

231.  Undue     influence;     gifts;     Hu- 

gnenin  v.  Baseley. 

232.  Contracts;   Tate  v.   Williamson. 

233.  Parties     between     whom     con- 

fidential   relation     ordinarily 
exists. 


234.  Guardian  and  ward. 

235.  Parent  and  child. 

236.  Solicitor  and  client. 

237.  Trustee  and  cestui  que  trust. 

238.  Fiduciary  can   make  no  profit; 

Tyrrell  v.  Bank. 

239.  Promoters  of  companies. 


230.  Mental  disability ;  drunkenness  ;  duress. 

The  third  species  of  fraud,  according  to  Lord  Hardwicke's 
classification,  is  that  which  is  presumed  from  the  circumstances 
and  condition  of  the  parties  contracting;^  and  this  may,  per- 
haps, be  again  subdivided  into  two  classes,  viz.,  fir.st,  where  one 
of  the  parties  is  laboring  under  some  mental  disability;  and, 
second,  where  the  transaction  takes  place  under  undue  influ- 
ence. 


448;  Harris  v.  Chamberlain,  126  Mich. 
280;  Gage  v.  Fisher,  5  N.  Dak.  297. 
In  this  last  case  the  rule  was  ap- 
plied to  offices  in  a  private  corpora- 
tion. 

1  Spalding  v.  Ewing,  149  Pa.  375; 


Lum    V.    McEwen,    56    Minn.    278; 
Houlton  V.  Dunn,  60  Minn.  26. 

2  The  presumption  is  raised  with- 
out the  aid  of  any  evidence  of  actual 
imposition,  from  the  very  nature  of 
tlie    tran.saction.     Sprinkle   v.   Well- 


I 


Goodrich    v.   Tenney,    144    111.    422;      born,  140  N.  C.  175. 


CH.  II.] 


FRAUD. 


359 


As  to  the  first  of  the  two  classes,  mere  weakness  of  mind  is 
not  of  itself  a  sufficient  ground  for  equitable  interference.  It 
would  be  impossible  to  carry  on  the  business  of  the  courts  if 
they  undertook  to  intei'fere  in  every  case  in  which  a  su|)crior 
and  more  astute  intellect  obtained  an  advantage  in  a  bargain 
over  a  dull  or  feeble  mind.^  But  an  entire  absence  of  intel- 
lectual power,  or  great  mental  aberration,  will  be  sufficient  to 
cause  a  contract  to  be  rescinded.'  Hence,  the  contracts  of 
idiots  and  lunatics  are  void,  or,  at  least,  avoidable.^  And 
while  mere  weakness  of  mind  will  not  be  enough,  of  itself,  to 
justify  a  rescission,  it  will,  nevertheless,  always  constitute  an 
important  element  in  actual  fraud.''  If,  therefore,  a  transaction 
be  in  the  slightest  degree  tainted  with  deceit,  the  intellectual 
imbecility  of  the  injured  party  will  be  laid  hold  of  by  a  chan- 
cellor to  make  out  a  case  of  actual  fraud,  which  might  other- 
wise be  incapable  of  proof.^  Whatever  be  the  cause  of  the 
mental  weakness — whether  it  arise  from  permanent  injury  to 
the  mind,  or  temporary  illness,  or  excessive  old  age — it  will  be 
enough  to  make  the  court  scrutinize  the  contract  with  a  jealous 


1  Osmond  v.  Fitzroy,  3  P.  Wms. 
129;  Ex  parte  Allen,  15  Muss.  58; 
Hadley  ik  Latimer,  3  Yerg.  537; 
Rogers  v.  Higgins,  57  111.  247;  Killian 
V.  Badgett,  27  Ark.  166;  Mann  v. 
Betterly,  21  Vt.  326;  Thomas  v. 
Sheppard,  2  McCord  Eq.  36;  Rippy 
V.  Gant,  4  Ired.  Eq.  443;  Nace  v. 
Boyer,  30  Pa.  90;  Aiman  v.  Stout,  40 
Id.  144;  Hyer  v.  Little,  20  N.  J.  Eq. 
443;  Lozear  v.  Shields,  23  Id.  509; 
Stiner  v.  Stiner,  58  Barb.  643. 

2Allis  V.  Billings,  6  Met.  415; 
Breckenridge  v.  Ormsby,  1  J.  J. 
Marsh.  239;  Desilver's  Est.,  5  Rawle, 
111;  Bensell  v.  Chancellor,  5  Whart. 
376;  Beals  v.  See,  10  Pa.  56;  Fish- 
bume  V.  Ferguson,  84  Va.  87;  Mc- 
Cartney V.  McCartney,  93  Tex.  359. 

■»  See  Hill  on  Trustees,  46  (73,  4th 
Am.  ed.);  Howe  v.  Howe,  99  Mass.  88; 
Helbreg  v.  Schumann,  150  111.  12; 
Wager  v.  Wagoner,  53  Neb.  511.  See, 
also,  Blount  v.  Spratt,  113  Mo.  48,  for 
a  case  in  which  equity  declined  to 
interfere  because   the  parties  coiili! 


not  be  restored  to  their  original  posi- 
tions; and  also,  Jamison  v.  Culligan, 
151  Id.  410;  McKenzie  v.  Donnell,  Id. 
430,  461. 

4Nottidge  V.  Prince,  2  Giff.  246; 
Baker  v.  Monk,  33  Beav.  419;  4  De  G. 
J.  &  S.  388;  Boyse  v.  Rossborough,  6 
H.  L.  Cas.  2;  Harding  i\  Handy,  11 
Wheat.  103;  Tracey  v.  Sacket,  1 
Ohio  St.  54;  Whitehorn  v.  Hines,  1 
Munf.  557;  Whelan  v.  Whelan,  3 
Cow.  537;  Deatly  v.  Murphy,  3  A.  K. 
Marsh.  472;  Brogden  v.  Walker,  2  H. 
&  J.  285;  Rumph  v.  Abercrombie,  12 
Ala.  64;  McWilliams  v.  Doran,  103 
Mich.  588. 

5  Hutchinson  v.  Tindall,  3  N.  J.  Eq. 
367;  Rumph  v.  Abercrombie,  12  Ala. 
64;  Hunt  v.  Moore,  2  Pa.  105; 
Brady's  Appeal,  66  Id.  277;  Hu- 
guenin  v.  Baseley,  14  Ves.  273; 
Harding  v.  Handy,  11  Wheat.  103; 
Hill  V.  McLaurin,  28  Miss.  288; 
Storrs  V.  Scougale,  48  Mich.  387; 
Hill  on  Trustees,  154;  Davis  v.  Cum- 
n-.i:.gs,  60  Vt.  502. 


360 


FRAUD. 


[part  II. 


eye;  and  any  unfairness  or  overreaching  will  be  promptly 
redressed.'  As  has  been  said  by  the  Supreme  Court  of  the 
United  States,  "wherever  there  is  great  weakness  of  mind  in  a 
person  executing  a  conveyance  of  land,  arising  from  age,  sick- 
ness, or  any  other  cause,  though  not  amounting  to  an  absolute 
disqualification,  and  the  consideration  given  for  the  property 
is  grossly  inadequate,  a  court  of  equity  will,  upon  proper  and 
seasonable  application  of  the  injured  party  or  his  representa- 
tives or  heirs,  interfere  and  set  the  conveyance  aside."  ^  "The 
result  of  the  decisions,"  says  an  English  chancery  judge,  in  a 
modern  case,  "is,  that  where  a  purchase  is  made  from  a  poor 
and  ignorant  man  at  a  considerable  undervalue,  the  vendor 
having  no  independent  advice,  a  court  of  equity  will  set  the 
transaction  aside."  ^ 

This  principle  has  also  been  applied  to  cases  which  have  been 
somewhat  numerous  of  late  years,  namely,  those  which  arise 
out  of  accidents  upon  the  tracks  of  railroad  and  trolley  com- 
panies. Where  such  accidents  occur,  and  where  settlements 
are  made  with  and  releases  of  damages  obtained  from  the  in- 
jured party,  shortly  after  the  accident  and  while  suffering 
mental  and  bodily  pain,  it  has  sometimes  been  said  that  such 
transactions  will  not  stand  in  equity,  and  indeed  may,  in  many 
instances,  furnish  no  defence  to  an  action  at  law  on  the  original 
tort.^ 

It  must  be  remembered,  however,  that  a  written  instrument 
cannot  be  avoided  for  fraud  or  mistake  unless  the  evidence  of 
fraud  is  clear,  unequivocal,  and  convincing;  and  it  must  also 


1  Highberger  v.  Stiffler,  21  Md.  338; 
Whelan  v.  Whelan,  3  Cow.  587; 
Martin  v.  Martin,  1  Heisk.  653; 
Brice  v.  Brice,  5  Barb.  549;  Hill  on 
Trustees,  155;  Perry  on  Trusts, 
§§  190,  191;  Matthews  v.  Baxter,  28 
I..  T.  (n.  s.)  169;  Maggini  v.  Pezzoni, 
76  Cal.  631;  McDaniel  i'.  McCoy,  68 
Mich.  332;  Jones  v.  Thompson,  5  Del. 
Ch.  374;  Kennedy  v.  Currie,  3  Wash. 
412. 

-' Allorc  V.  Jewell,  94  U.  S.  511; 
aijproved  in  Griffith  v.  Godey,  113  Id. 
95.  Si'i',  also,  Kempson  v.  .Vshbee, 
I.,  k.  li)  Ch.  15;  Marshall  v.  Bill- 
i.ijjlv,    7    Ind.    250;    Duncombe    v. 


Richards,  46  Mich.  166;  Moore  v. 
Moore,  56  Cal.  89;  Rau  v.  Von 
Zedlitz,  132  Mass.  164;  Parkhurst  ?'. 
Hosford,  21  Fed.  Rep.  827;  Churchill 
V.  Scott,  65  Mich.  485;  Dickson  v. 
Kcmpinsky,  96  Mo.  252;  Borden  v. 
White,  44  X.  J.  Eq.  291;  Hill  v. 
Miller,  50  Kan.  659;  Wille  i-.  Wille, 
57  S.  C.  413;  Yount  v.  Yount,  144 
Ind.  133;  Rees  v.  De  Bernardy  [1890], 
2  Ch.  437;  Stepp  v.  Frampton,  179 
Pa.  284;  Light  v.  Light,  221  Pa.  136. 

3  Fry  V.  Lane,  20  Ch.  D.  322. 

*  Jones  V.  Ala.  &  Vick.  R.  R.  Co., 
72  Miss.  22;  Railway  Co.  v.  Cunning- 
l.ani,  59  Kan.  722. 


CH.  II.] 


FRAUD. 


361 


be  recollected  that  a  written  release  cannot  be  avoided  by  proof 
that  one  of  the  parties  to  it,  who  is  sound  in  mind  and  able  in 
body,  could  not  read  or  write,  and  did  not  know  the  terms  of 
the  agreement,  but  neglected  to  ask  anyone  to  read  it  to  him 
when  he  signed  it.^ 

While  contracts  tainted  with  fraud  will  be  set  aside,  yet  a 
mere  latent  suspicion  of  unfairness  will  not  be  enough.^ 

Moreover,  it  need  scarcely  be  remarked  that  the  mere  cir- 
cumstance of  old  age  or  physical  feebleness,  will  not  render  a 
transaction  fraudulent,  if,  in  point  of  fact,  the  party  is  intel- 
ligent and  capable.^ 

Drunkenness  falls  under  the  same  principles.'*  If  a  man  is 
so  far  drunk  that  he  is  substantially  non  compos  mentis,  his  con- 
tract will  be  invalid;  but  if  there  is  intoxication,  not  so  great 
in  extent,  equity  will  not  interfere.^  It  will,  however,  in  cases 
of  partial  drunkenness,  lay  hold  of  any  circumstances  tending 
to  show  actual  imposition,**  and  thus  make  out  a  case  of  actual 
fraud,  especially  if  the  drunkenness  has  been  brought  about  by 
the  contrivance  of  the  other  party  to  the  transaction/ 

Equity  will  also  relieve  against  contracts  obtained  under 
duress,  fear,  apprehension,  or  extreme  distress;^  even  although 
a  case  of  duress  at  conmion  law  might  not  have  been  made 
out.^  Thus,  in  Wilhams  v.  Bayley  it  was  held  that  a  father, 
whose  name  had  been  forged  by  his  son,  and  who  had  been 


1  See  the  language  of  Sanborn, 
Circuit  Judge,  in  Chicago,  etc.,  Ry. 
Co.  V.  Belliwith,  55  U.  S.  App.  113, 
119,  120.  See,  also,  in  this  connec- 
tion, Cooney  v.  Lincoln,  21  R.  T.  246; 
Union  Pacific  Ry.  Co.  v.  Harris,  158 
U.  S.  326;  27  U.  S.  App.  450. 

2  Hetrick's  Appeal,  58  Pa.  497. 

3  Gratz  V.  Cohen,  11  How.  19.  See, 
also,  Lewis  v.  Pead,  1  Ves.  Jr.  19; 
Pratt  V.  Barker,  1  Sim.  1 ;  4  Russ.  507; 
Graham  v.  Pancoast,  .30  Pa.  89;  Dean 
V.  Fuller,  40  Id.  474;  Howe  v.  Howe, 
99  Mass.  88;  Greer  v.  Greer,  9  Gratt. 
332;  Wray  v.  Wray,  32  Ind.  126; 
Darnell  v.  Rowland,  30  Id.  342. 

*  See  Co.  Litt.  447,  a. 

5  Gore  V.  Gibson,  13  M.  &  W.  623; 
Clifton  V.  Davis,  1  Pars.  Eq.  31; 
Johnson  v.  Medlicott,  3  P.  Wms.  130, 


n.;  Cory  v.  Cory,  1  Ves.  Sr.  19;  Max- 
well V.  Pittenger,  3  N.  J.  Eq.  156; 
Selah  V.  Selah,  23  Id.  185;  Morrison  v. 
McLeod,  2  Dev.  &  Bat.  Eq.  221; 
Harbison  v.  Lemon,  3  Blackf .  51 ; 
Cook  V.  Bagnell  Co.,  78  Ark.  47. 

«  Gross  inequality  in  consideration. 
Swan  V.  Talbot,  152  Cal.  142. 

7  Crane  t>.  Conklin,  Saxt.  346;  Cory 
V.  Cory,  1  Ves.  Sr.  19;  Calloway  i\ 
Witherspoon,  5  Ired.  Eq.  128;  Phil- 
lips V.  Moore,  11  Mo.  600;  Freeman 
V.  Dwiggins,  2  Jon.  Eq.  162;  Muller 
V.  Buyck,  12  Mont.  354;  Shaw  v. 
Thackray,  1  Sm.  &  Giff.  537. 

8  Neilson  v.  McDonald,  6  Johns. 
Ch.  210;  Hill  on  Trustees,  156;  Good- 
rich V.  Shaw,  72  Mich.  109;  Oak  v. 
Dustin,  79  Me.  23. 

9  Galush  V.  Sherman,  105  Wis.  263. 


362 


FRAUD. 


[part  II. 


requested  to  take  the  amount  of  the  hability  upon  himself, 
knowing  that  unless  he  did  so  his  son  would  be  exposed  to  a 
criminal  })rosecution  with  the  certainty  of  conviction,  could  not 
be  regarded  as  a  free  and  voluntary  agent,  so  as  to  render  a 
security  given  under  such  a  j^ressure  valid. ^  And  so,  on  the 
same  grounds,  the  deed  of  a  married  woman  will  be  avoided, 
if  her  acknowledgment  has  been  obtained  by  duress;-  and  a 
settlement  by  a  wife  on  her  husband,  obtained  by  him  l^y  insti- 
tuting proceedings  in  divorce,  will  be  set  aside.^ 

But  a  bill  \\  ill  not  lie  for  rescission  on  the  ground  of  duress 
after  the  contract.'* 

231.   Undue  influence  ;    gifts;  Huguemn\.  Baseley. 

Passing  now  to  the  second  class  of  cases,  those,  namely,  in 
wliich  the  fi'aud  springs  from  the  circumstances  and  condition 
of  the  parties  to  the  transaction,  it  may  be  stated,  as  a  general 
rule,  that  relief  will  be  afforded,  in  equity,  in  all  transactions  in 
which  "influence  has  been  accjuired  and  abused,  in  which  con- 
fidence has  been  reposed  and  betrayed."  ^ 

A  transaction  which  tak(\s  place  under  undue  influence  may 
l)e  either  in  the  nature  of  a  gift  or  of  a  contract.  In  either 
aspect  it  is  regarded  by  courts  of  equity  with  a  jealous  eye;  but 


1  Williams  r.  Bayley,  L.  R.  1  H.  L. 
218.  See  Bentley  v.  Ro'oson,  117 
Mich.  691;  Heaton  v.  Bank,  59  Kan. 
281;  Coffman  r.  Lookout  Bank,  a 
Lea,  2.32;  Jordan  v.  Elliott,  12  W.  N. 
C.  o6;  Norton  v.  Norton,  74  la.  161; 
Bryant  v.  Peck  &  Co.,  154  Mass.  460; 
Davis  V.  Smith,  68  N.  H.  25.3; 
Lomerson  ?•.  Johnston,  47  N.  J.  Eq. 
312;  Lappin  r.  Crawford,  186  Mo. 
462;  Hensinger  r.  Dyer,  147  Id.  219; 
Turner  v.  Overall,  172  Id.  271;  Har- 
greaves  ?•.  Korcek,  44  Neb.  660.  But 
see  Shattuck  r.  Watson,  53  Ark.  147. 

2  McCandless  r.  Engle,  51  Pa.  309; 
Michener  r.  Ca vender,  .38  Id.  337; 
Louden  r.  Blythe,  16  Id.  532.  For 
the  rule  at  law,  see  Fairbanks  v. 
Snow,  145  Mass.  153. 

^  DoUiver  v.  DoUiver,  94  Cal.  642. 
See,  al.so,  Curtis  v.  Crossley,  59  N.  J. 
Eq.  358. 


•«  Fulton  V.  Loftis,  63  N.  C.  393. 
To  justity  setting  aside  a  deed  upon 
the  ground  of  duress,  the  grantor 
must  at  the  time  of  its  execution  have 
been  in  such  fear  of  his  life,  or  of 
bodily  harm  in  case  of  refu.sal  as  to 
so  affect  his  mind  that  the  execution 
of  the  deed  cannot  be  said  to  bo  his 
^'oluntary  act.  Hintz  r.  Hintz,  222 
111.  248.  " 

5  Smith  V.  Kay,  7  H.  L.  Cas.  750. 
The  language  of  Lord  Kingsdowne  is 
even  more  striking  than  that  used  by 
Sir  Samuel  Romilly  in  his  celebrated 
reply  in  Huguenin  r.  Baseley,  viz.. 
that  "  the  relief  stands  upon  a  general 
principle  aj)plying  to  all  the  varieties 
of  relations  in  which  dominion  may 
be  exercised  by  one  person  over  an- 
other." 


CH.  II.]  FRAUD,  oG3 

the  scrutiny  in  cases  of  gifts  is  more  severe  and  searching  than 
in  those  of  contracts. 

The  leading  authority  upon  the  subject  of  gifts  which  are 
obtained  through  undue  influence  is  Huguenin  v.  Baseley/ 
where  a  widow  lady  executed  a  voluntary  settlement  upon  a 
clergyman  who  had  ingratiated  himself  with  her,  and  had 
induced  her  to  withdraw  her  affairs  from  the  hands  of  her 
solicitor,  by  whom  they  had  been  previously  managed.  The 
settlement  was  set  aside,  on  the  ground  of  the  confidential  re- 
lations of  the  parties.  "The  question,"  said  Lord  Eldon,  "is 
not  whether  she  knew  what  she  was  doing,  had  done,  or  pro- 
posed to  do,  but  Jlow  the  intention  was  produced;  whether  all 
care  and  providence  was  placed  around  her,  as  against  those 
who  advised  her,  which  from  their  situation  and  relation  in  re- 
spect to  her  they  were  bound  to  exert  on  her  behalf.'' 

So,  in  the  case  of  Wright  v.  Vanderplank,  the  court  said  that, 
had  it  not  been  for  the  length  of  time  during  which  the  trans- 
action had  been  acquiesced  in,  and  by  which  alone  the  com- 
plainant was  barred,  a  gift  from  a  daughter,  soon  after  attaining 
twenty-one,  to  her  father  woukl  have  lx>on  set  aside  solely 
on  the  ground  of  the  jealousy  with  which,  upon  pi'inciples  of 
natural  justice,  and  upon  considerations  important  to  the  in- 
terests of  society,  the  law  examines,  scrutinizes,  and  weighs  in 
golden  scales  every  such  transaction." 

1  14  Ves.  273;  2  Lead.  Cas.  Eq.  556  old  lady  of  seventy-five  to  a  spirit- 
(4th  Eng.  ed.).  See  Kirwan  v.  ualist  was  set  aside);  Lockwood  i\ 
Cullen,  4  Ir.  Ch.  330;  McKinney  v.  Lockwood,  124  Mich.  627  (a  case  of 
Hensley,  74  Mo.  326;  Buchanan  v.  conveyance  of  all  her  property  by  a 
Gibbs,  26  Kan.  277;  Shaw  v.  Ball,  55  woman  of  seventy  to  her  son);  Sher- 
la.  55,  and  Falk  v.  Turner,  101  Mass.  rin  v.  Flinn,  155  Ind.  422;  Fulham 
494,  for  cases  which  were  held  not  to  v.  McCarthy,  1  H.  L.  Cas.  703; 
fall  under  the  doctrine  of  Huguenhi  Greenfield's  Estate,  14  Pa.  507;  Wis- 
V.  Baseley.  tar's   Appeal,    54    Id.   63;   Taylor   v. 

2  Wright  i;.  Vanderplank,  8  De  G.,  Taylor,  8  How.  183;  Slocum  v. 
M.  &  G.  137.  See,  also.  Turner  v.  Marshall,  2  Wash.  C.  C.  397;  Brock 
Collins,  L.  R.  7Ch.  329;  Hoghton  v.  v.  Barnes,  40  Barb.  521;  Gibbes  v. 
Hoghton,  15  Beav.  278;  Prideaux  v.  N.  Y.  Life  Ins.  Co.,  67  How.  Pr.  207; 
Lonsdale,  1  De  G.,  J.  &  Sm.  433;  Barnard  v.  Gantz,  140  N.  Y.  249; 
Everitt  v.  Everitt,  L.  R.  10  Eq.  Post  v.  Hagan,  71  N.  J.  Eq.  234; 
405;  Tomson  v.  Judge,  3  Drew.  306;  Cherbonnier  v.  Evitts,  56  Md.  276; 
Broun  v.  Kennedy,  33  Beav.  133;  Zimmerman  ?'.  Bitner,  79  Id.  115; 
Savery  v.  King,  5  H.  L.  Cas.  626;  Ashton  v.  Thomp.son,  32  Minn.  25; 
Lyon  V.  Home,  L.  R.  6  Eq.  655  Caspari  v.  The  First  German  Church, 
(where  a  transfer   of  £24,000  by  an  82  Mo.  649;  Todd  v.  Grove,  33  Md. 


364 


FRAUD. 


[part  II. 


The  whole  subject  was  considered  in  the  EngUsh  Court  of 
A]i])eals  in  the  case  of  Allcard  v.  Skinner.^  There  a  single  woman, 
tliirty-five  years  of  age,  under  the  advice  of  her  spiritual  di- 
rector and  confessor,  became  an  associate  in  a  Protestant  in- 
stitution known  as  "The  Sisters  of  the  Poor."  The  Sister- 
hood is  under  the  control  of  a  lady  superior.  Among  the  vows 
taken  by  the  associates  were  those  of  poverty  and  of  obedience 
to  the  lady  superior;  and  the  rules  provided  that  no  external 
advice  should  be  received  save  with  the  superior's  consent. 
Miss  Allcard,  upon  becoming  an  associate,  made  a  will  bequeath- 
ing all  her  property  to  the  superior;  and  shortly  afterwards 
handed  over  to  her  large  sums  in  money  and  in  railway  stock. 
In  May,  1879,  Miss  Allcard  left  the  Sisterhood.  In  1885  she 
brought  an  action  to  recover  the  money  and  stock.  It  was 
held,  on  the  principle  of  Huguenin  v.  Baseley,  that  her  equita- 
ble right  was  good,  but  that,  under  Wrighi  v.  Vanderplank,  it 
had  been  lost  by  laches. 

It  is  essential  that  the  donor,  under  such  circumstances,  should 
have  the  advantage  of  competent  and  independent  advice;  and 
if  the  person  who  stands  in  the  confidential  relation  wishes  to 
hold  the  benefit  conferred,  he  must  show  that  the  person  con- 
ferring it  had  such  advice.^ 

The  same  considerations,  however,  are  not  universally  appli- 
cable to  testamentary  dispositions.  Thus,  a  client  may  make  a 
gift  to  a  solicitor  by  will,  even  though  the  will  is  drawn  by  the 
solicitor,  provided  the  will  was  not  made  under  any  mistake  or 
misapprehension  caused  by  the  solicitor;^  and  so,  also,  the  nat- 


188;  Turner  v.  Turner,  44  Mo.  535; 
Knox  i'.  Singmaster,  75  la.  64;  Good 
V.  Zook,  116  Id.  582;  Davis  v.  Strange, 
86  Va.  793;  Curlett  v.  Newman,  30 
W.  Va.  182;  Ryan  r.  Price,  106  Ala. 
584;  Ross  v.  Conway,  92  Cal.  632; 
Soberanes  r.  Soberancs,  97  Cal.  140. 
See  Corp.  of  Latter  Day  Saints  v. 
Watson,  25  Utah,  45;  Dowie  v.  Dris- 
coll,  203  111.  480. 

1  36  Ch.  D.  145.  See  Morley  v. 
I.oughnan  [1893],  1  Ch.  736,  where  a 
man  without  means,  employed  by  a 
wealthy  epileptic  as  a  travelling  com- 
panion, converted  the  latter  to  his 
own    religious   views   and    gradually 


obtained  from  him  most  of  his  for- 
tune. The  defendant  was  compelled 
to  refund  on  the  ground  of  undue 
influence  under  guise  of  religion. 

2  Rhodes  v.  Bate,  L.  R.  1  Ch.  252; 
Allcard  v.  Skinner,  .36  Ch.  D.  145; 
Corporation  of  Latter  Day  Saints  v. 
Watson,  25  Utah,  45.  See  Ross  r. 
Conway,  92  Cal.  632;  Collins  v.  Col- 
lins, 45  N.  J.  Eq.  813;  Corrigan  r. 
Pironi,  48  Id.  607;  Post  v.  Hagan,  71 
N.  J.  Eq.  234. 

3  Hindson  r.  W^eatherill,  5  De  G.,  M. 
&  G.  301.  See  Mitchell  v.  Homfray, 
8  Q.  B.  Div.  587;  also,  2  Lead.  Cas. 
Eq.  390. 


II 


CH.  II.]  FRAUD.  365 

ural  influence  of  a  son  over  a  father  will  not,  of  itself,  render 
a  testamentary  disposition  in  the  son's  favor  invalid.' 

Even  gifts  between  persons  who  stand  in  no  confidential  rela- 
tion to  each  other  are  watched  with  jealousy .- 

232.   Contracts;  Tate\.   Williamson. 

Passing  now  from  the  subject  of  gifts  to  that  of  contracts, 
it  may  be  stated,  as  a  general  rule,  that  a  contract  between  par- 
ties who  stand  in  a  confidential  relation  to  each  other  falls  under 
the  principle  laid  down  by  Lord  Kingsdowne  in  Smith  v.  Kay,' 
Wherever  two  persons  stand  in  such  a  relation  that,  while  it 
continues,  confidence  is  necessarily  reposed  by  one,  and  the  in- 
fluence which  necessarily  grows  out  of  that  confidence  is  pos- 
sessed by  the  other,  and  this  confidence  is  abused,  or  the  influence 
is  exerted  to  obtain  an  advantage  at  the'  expense  of  the  confiding 
party,  the  person  so  availing  himself  of  his  position  will  not  be 
permitted  to  retain  the  advantage,  although  the  transaction 
could  not  have  been  impeached  if  no  such  confidential  relation 
had  existed.'*  There  can  be  no  contract  between  the  two,  except 
after  the  fullest  and  fairest  explanation  and  communication  of 
every  particular  resting  in  the  breast  of  the  one  who  seeks  to 
establish  the  contract  with  the  person  so  trusting  him.-^  This 
doctrine  was  applied  by  Lord  Chancellor  Chelmsford  in  Tate  v. 
Williamson,  a  case  which  well  illustrates  the  extent  and  nature 
of  the  general  principle.  There  Tate,  a  young  man  of  twenty- 
three,  who  was  the  owner  of  a  moiety  of  a  freehold  estate,  and 
who  was  largely  indebted,  wrote  to  his  great-uncle  for  advice 
and  assistance  in  regard  to  the  payment  of  his  debts.  His  great- 
uncle  sent  a  nephew,  Williamson,  to  see  Tate  upon  the  subject, 
and  Williamson  made  an  offer  to  purchase  Tate's  moiety  of 
the  estate  for  £7000,  which  was  verbally  accepted.  Before  any 
agreement  was  signed,  Williamson  obtained  a  valuation  by  a 
surveyor,  estimating  the  value  of  the  mines  under  the  whole 
tract  at  £20,000.     The  sale  was  completed  without  this  infor- 

iMackall    v.   Mackall,    135   U.    S.  Coleman,   187  111.  556,  and  Hall  v. 

17.3-174.  Winam,  14  Hawaii,  306. 

2  2  Lead.  Cas.  Eq.  582.     See  Cooke  s  Note    to    Fox    v.    Mackreth,     1 
r.  Lamotte,  15  Beav.  2.34.  Lead.  Ca.s.  Eq.   171   (4th  Eng.  ed.). 

3  7H.  L.  Cas.  750;  ar?<e,  p.  .362.  See,  also,   Norris  v.  Tayloe,   49   111. 
*  Tate  V.  Williamson,  L.  R.  2  Ch.       17;    Finegan    v.    Theisen,    92    Mich. 

61,  per  Lord  Chelmsford.    See  Butler       173;  Butler  r.  Prentiss,  158  N.  Y.  49; 
V.  Prentiss,  158  N.  Y.  49;  Marshall  v.       Van  Dusen  v.  Bigelow,  13  N.  D.  277. 


366 


FRAUD. 


[part  II. 


niation  having  been  communicated  to  Tate.  A  bill  was  subse- 
quently filed  by  Tate  to  set  the  sale  aside,  and  a  decree  in  his 
favor  was  made  by  Vice-Chancellor  Wood,^  which  was  affirmed 
by  Lord  Chelmsford.^  It  will  be  observed  that  in  this  case 
there  was  no  well-defined  confidential  i-elation  (such  as  that  of 
attorney  and  client,  guardian  and  ward,  and  so  forth)  existing 
between  the  parties;  but  that  the  circumstances  of  the  transac- 
tion were  such  that  one  man  necessarily  was  trusted  by  the 
other,  and  when  that  confidence  arose,  no  matter  how,  the  duty 
of  fvdl  disclosure  immediately  arose  with  it.  It  shows  the  truth 
of  the  remark  made  by  Lord  Cranworth  in  Smith  v.  Kay,^  that 
the  familiar  cases  of  the  influence  of  a  parent  over  his  child,  of 
a  guardian  over  his  ward,  of  an  attorney  over  his  client,  are  but 
instances  of  a  broad  and  widely  applicable  principle."* 

233.  Parties  between  whom  confidential  relation  ordina- 
rily exists. 

Starting,  therefore,  with  the  general  principle  that  all  trans- 
actions, whether  of  gift  or  contract,  made  under  undue  influ- 
ence growing  out  of  the  relations  of  the  parties,  may,  if  they 
are  injuiious  to  the  confiding  party,  be  set  aside  solely  on  the 
ground  of  the  confidential  relation,  and  without  more,  let  us 
see  how  this  principle  has  been  applied  to  the  numerous  cases 
in  which  such  confidential  relations  ordinarily  arise. 

There  are  many  such  relations.  In  some  of  them  the  con- 
tract is  absolutely  voidable  at  the  option  of  the  party  who  is 
presumed  to  be  imposed  upon;  while  in  others  the  confidential 


1  The  case,  when  before  the  Vice- 
Chancellor's  court,  is  reported,  L.  R. 
1  Eq.  528. 

2  L.  R.  2  Ch.  5.5.  See,  atso,  Gros- 
venor  ?\  Sherratt,  28  Beav.  659; 
Cary  i\  Gary,  2  Sch.  &  Lef.  17o; 
Gibson  v.  Jcyes,  6  Ves.  266;  Gresley 
V.  Mousley,  3  De  G.,  F.  &  J.  433. 

■>7  H.  L.  Gas.  771. 

*  See,  also,  Turner  v.  Turner,  44 
Mo.  535;  Harknes.s  v.  Fraser,  12  Fla. 
341;  Bayliss  v.  Williams,  6  Gold.  442; 
Kline  r.  Kline,  57  Pa.  120;  Rocka- 
fellow  ?'.  Newcomb,  57  111.  186;  Roth- 
enbarger  v.  Rothenbarger,  111  Mo.  <J; 
McCormick  v.  Malin,  5  Blackf.  509. 


In  this  last  case  it  was  said  with 
succinctness  and  accuracy  that  the 
rule  under  con.sideration  applies  "to 
all  cases  where  confidence  on  the  one 
hand  and  influence  on  the  other, 
exist,  from  whatever  causes  they  may 
spring;"  citing  Griffiths  v.  Robins,  3 
Mad.  191;  Revett  7k  Harvej'^,  1  Sim. 
&  S.  502.  '  And  see  Shipman  r.  Fur- 
niss,  69  Ala.  555;  Gillespie  r.  Holland, 
40  Ark.  28;  Brown  v.  Burbank,  64 
Gal.  99,  and  Bowen  v.  Wolff,  23  R.  I. 
56;  Whitesell  v.  Strickler,  167  Ind. 
612.  But  see  Hemingway  ?^  Cole- 
man, 49  Conn.  390,  and  Taylor  v. 
Johnston,  19  Ch.  D.  603 


CH.  II.] 


FRAUD. 


3r37 


relation  is  -prima  facie  evidence  of  fraud,  which  may,  however, 
be  rebutted  by  showing  that  the  transaction  is  a  fair  and  honest 
one,  and  that  no  improper  advantage  has  been  taken  of  the  in- 
fluence arising  out  of  the  confidential  relation. 

The  question  always  is,  to  what  extent  may  undue  influence 
be  presumed  from  the  relation  of  the  parties. 

234.  Guardian  and  ^Vard. 

This  presumption  of  undue  influence  is  more  or  less  strong 
according  to  the  peculiar  relations  which  the  parties  occupy 
towards  each  other. 

The  relation  of  guardian  and  ward  is  one  in  which  the  pre- 
sumption exists,  perhaps,  in  the  highest  degree;  and  a  transac- 
tion between  persons  thus  situated  during  the  continuance  of 
the  relationship,  and,  especially,  if  it  takes  the  form  of  a  gift, 
can  rarely,  if  ever,  stand. ^ 

The  same  rule  applies,  though  not  with  the  same  stringency, 
to  contracts  between  guardian  and  ward,  and  to  gifts  from  the 
latter  to  the  former,  immediately  after  the  ward  has  attained  his 
majority;  the  reason  being  that  the  influence  acquired  during 
the  continuance  of  the  relation  is  still  supposed  to  exist  and  all 
settlements  or  dispositions  of  property  are  presumed  to  be  made 
vmder  undue  influence.^  If  such  transactions,  therefore,  are 
ever  sustained,  they  are  only  so  when  the  utmost  good  faith  is 
displayed  by  the  guardian,  and  when  the  ward  is  put  fully  in 
possession  of  all  the  information  in  regard  to  the  property, 
which  is  necessary  in  order  that  he  may  make  an  advantageous 
and  intelligent  disposition  of  it.^  Hence,  although  a  gift  from  a 
ward  to  his  guardian  may  be  sustained  if  it  is  shown  to  have 
been  made  upon  a  fair,  serious,  and  well-informed  consideration, 
it  will  not,  as  a  general  rule,  be  suffered  to  stand,  although 
there  may  not  be  any  evidence  of  actual  unfairness.'*    In  other 


1  See  Farmer  v.  Farmer,  .39  N.  J. 
Eq.  211;  Cowee  v.  Cornell,  75  N.  Y. 
99;  Wehrle's  Appeal,  189  Pa.  179; 
Baum  V.  Hartmann,  226  111.  1(50. 

2  Dawson  v.  Massey,  1  B.  &  B. 
226,  Blackmore  v.  Shelby,  8  Humph. 
439;  Bostwick  v.  Atkins,  3  Comst. 
53;  Gallatain  i\  Cunningham,  8  Cow. 
367;  McConkey  v.  Cockey,  69  Md. 
286;  Williams  v.  Davison's  Est.,  133 


Mich.  344;  Scoville  v.  Brock,  79  Vt. 
449. 

3Eberts  v.  Eberts,  55  Pa.  119; 
Wills's  Appeal,  22  Id.  332;  Womack 
V.  Austin,  1  S.  C.  (x.  s.)  421. 

4  See  Hylton  v.  Hylton,  2  Ves.  Sr. 
547;   Hat<!h   v.   Hatch,   9  Ves.   291 
Wright   V.   Carter  [1903],    1   Ch.   27 
Somes    V.    Skinner,    16    Mass.    348 
Richardson  v.  Linney,  7  B.  Mon.  571 


36S 


FRAUD. 


[P.VRT  II. 


words,  the  presumption  is  against  the  bargain  or  the  bounty; 
and  the  onus  of  showing  its  entire  fairness  is  thrown  upon  the 
guardian.  It  may  be  vahd;  but  inherently,  and  of  itself,  it  is 
presumptively  fraudulent.  So  also  settlements  made  soon  after 
the  ward  comes  of  age,  and  especially  before  he  is  in  possession 
of  his  estate,  are  viewed  by  the  court  with  a  watchful  and  even 
jealous  eye.'  To  sustain  such  settlements  it  nmst  appear  that 
the  ward  had  sufficient  time  and  opportunity  to  examine  the 
guardian's  accounts;  and  that  he  was  either  himself  competent 
to  make  the  examination,  or  was  assisted  by  competent  and  in- 
dependent advice.-  If  these  elements  of  fairness  co-exist  the 
settlement  will  be  allowed  to  stand. ^ 

On  the  same  principles  a  covenant  by  a  man  about  to  marry, 
to  release  his  intended  wife's  mother  from  all  accounts  of  mesne 
profits,  was  set  aside."* 


235.  Parent  and  child. 

Transactions  between  parent  and  child,  while  not  viewed 
with  the  same  degree  of  suspicion  as  those  between  guardian 
and  ward,  are,  nevertheless,  always  closely  investigated  in  equity, 
and  will  be  set  aside  if  there  is  the  slighest  evidence  of  imposi- 
tion or  unfairness.  The  mere  existence  of  the  relation  of  parent 
and  child  (it  has  been  said)  is  not,  perhaps,  enough  to  vitiate  an 
act  which,  as  between  strangers,  would  have  been  valid  ;^  and 
although  English  authorities  seem  to  favor  a  stricter  rule,^  yet 


Andrews  >\  Jones,  10  Ala.  400;  Gar- 
vin V.  Williams,  50  Mo.  206. 

iSays  V.  Barnes,  4  S.  &  R.  112; 
Elliot  V.  Elliot,  5  Binn.  8;  Fish  v. 
Miller,  1  Hoff.  Ch.  267;  Waller  r. 
.Vrmistead,  2  Leigh,  11;  Baylor  v. 
Fulkerson,  <)6  Va.  265. 

2  Stanley's  Appeal,  S  Pa.  431;  Gar- 
vin r.  Williams,  44  Mo.  465;  In  re 
Van  Home,  7  Paige  Ch.  46;  Witt  v. 
Day,  112  la.  110. 

3  See  Sherry  r.  Sansberry,  3  Ind. 
320;  Hawkins's  Appeal,  32  Pa.  265; 
Cowan's  Appeal,  74  Id.  329;  Kirby  v. 
Taylor,  6  Johns.  Ch.  248;  Meek  v. 
Perry,  :?6  Miss.  190;  Baylor  v.  Fulker- 
son, 96  Va.  265. 

4  Duke  of  Hamilton  ;•.  Lord  Mohun, 
1  P.  Wms.  118.     See,  however.  Fish 


V.  Cleland,  23  111.  238;  Cleland  v. 
Fish,  43  Id.  282. 

5  Jenkins  v.  Pye,  12  Pet.  241.  See 
Hawkins's  Appeal,  32  Pa.  263; 
Crothers  v.  Crothers,  149  Id.  201; 
Francis  v.  Wilkinson,  147  111.  370; 
Bauer  v.  Bauer,  82  Md.  241;  Bergen 
V.  Udall,  31  Barb.  9;  In  re  Martin,  98 
N.  Y.  193;  Millican  v.  Millican,  24 
Tex.  426;  Knox  v.  Singmaster,  75  la. 
64;  Ferns  v.  Chapman,  211  111.  597. 
The  rule,  however,  is  more  strictly 
stated  in  Archer  v.  Hudson,  7  Beav. 
551,  by  Lord  Langdale,  M.  R.  (the 
transaction,  however,  was  not  in  that 
case  one  between  parent  and  child); 
and  see  p.  363,  note  2. 

^  Ante,  §231.  See,  also.  Baker  v. 
Bradley,  7    De    G.,  M.    &    G.    597 


CH.  II.] 


FRAUD. 


369 


the  modern  American  cases  seem  to  justify  the  doctrine  that  a 
more  hberal  view  should  be  taken. ^  Of  course,  if  there  is  any 
evidence  of  pressure  or  influence  unduly  exercised,  the  transac- 
tion can  never  stand. ^ 

A  leading  case  on  this  subject  is  Taylor  v.  Taylor,  where  the 
improper  manner  in  which  parental  influence  may  be  exercised 
is  strikingly  exemplified. •"'  Dispositions  of  property,  however, 
which  amount  to  reasonable  and  convenient  family  arrange- 
ments, will  be  upheld  as  between  parent  and  child. ^  Ordinarily 
the  influence  which  is  to  be  guarded  against  is  that  of  the  parent 
over  the  child;  but  the  case  is  sometimes  reversed,  and  the  nat- 
ural relation  of  the  parties  is  changed  by  time,  the  parent  be- 
coming dependent  upon  the  child.  In  such  cases  the  rules 
already  stated  will  apply,  and  a  contract  improperly  obtained  by 
virtue  of  such  influence  will  be  set  aside. ^  But  it  has  been  de- 
cided that  in  cases  in  which  the  benefit  moves  from  the  parent 
to  the  child,  there  is  no  burden  resting  upon  the  latter  to  ex- 
plain the  gift  or  show  the  fairness  of  the  contract;^  and  this 
ruling  would  seem  to  be  entirely  correct,  although  it  need 
scarcely  be  added  that  any  attempt  at  misrepresentation  or 
over-reaching  will  render  the  gift  or  contract  voidable.^  These 
principles  as  to  parent  and  child  are  applicable  also  to  cases  in 
which  a  voluntary  gift  is  obtained  by  a  person  who  stands  in 
loco  parentis  to  the  donor.* 


Wright  V.  Vanderplank,  8  Id.  137. 
Hoghton  V.  Hoghton,  15  Beav.  278, 
Noble  V.  Moses,  81  Ala.  530;  Smith  v. 
Smith,  60  Wis.  329;  Miskey's  Appeal, 
107  Pa.  611,  and  Baldock  v.  Johnson, 
14  Oreg.  542. 

1  See  Coleman's  Estate,  193  Pa. 
612;  Slayback  v.  Witt,  151  Ind.  376 
Whiteley  v.  Whiteley,  120  Mich 
30,  Sawyer  v.  White,  58  CCA 
587;  Bonsai  v.  Randall,  192  Mo.  525 
Kennedy  v.  McCann,  101  Md.  643. 

2  Williams  V.  Williams,  63  Md.  171 
Becker  ?•.  Schwerdtle,   141  Cal.  386 

3  Taylor  v.  Taylor,  8  How.  183 
Bergen  v.  Udall,  31  Barb.  9;  Miller  v 
Simonds,  72  Mo.  669;  Gibson  v 
Hammang,  63  Neb.  349. 

<Jenner  v.  Jenner,  2  Giff.   232;  2 
De  G.,  F.  &  J.  359;  Hartopp  v.  Har- 

24 


topp,  21  Beav.  259;  Hoblyn  v.  Hob- 
lyn,  41  Ch.  D.  200;  Simonds's  Estate, 
201  Pa.  417,  418.  See  Williams  v. 
Williams,  L.  R.  2  Ch.  294;  Marshall  v. 
Marshall,  75  la.  132. 

5  Highberger  v.  Stiffler,  21  Md.  338; 
Whelan  v.  Whelan,  3  Cow.  587;  Mar- 
tin V.  Martin,  1  Heisk.  653;  Bowe  v. 
Bowe,  42  Mich.  195;  Norton  v.  Nor- 
ton, 74  la.  161;  Green  v.  Roworth, 
113  N.  Y.  462;  Mott  v.  Mott,  49  N.  J. 
Eq.  192;  Payette  r.  Ferrier,  20  Wash. 
479;  Bogie  v.  Bogie,  41  Wis.  209;  For- 
restel  v.  Forrestel,  110  la.  614. 

8  Clark  V.  Clark,  174  Pa.  336  (where 
some  of  the  authorities  are  collected) ; 
Carney  v.  Carney,  196  Id.  38,  and 
Haynes  v.  Harriman,  117  Wis.  132. 

7  Smith  V.  Snowden,  96  Ky.  32. 

8  Archer  v.  Hudson,  7  Beav.  551. 


370 


FRAUD. 


[part  II. 


236.  Solicitor  and  client. 

The  rule  in  regard  to  solicitor  and  client  is  more  stringent 
than  in  either  of  the  two  cases  already  considered.^  A  solicitor 
may  purchase  from  his  client,  although  the  bargain  will  be  sub- 
jected to  the  most  rigid  scrutiny,  and  the  onus  of  showing  its 
fairness  lies  on  the  former ;  ^  but  a  gift  from  client  to  counsel 
during  the  continuance  of  the  relation,  is  absolutely  void.''' 

Indeed,  even  in  cases  of  contract,  where  the  property  is  the 
subject-matter  of  the  litigation  in  which  the  attorney  is  acting, 
it  is  with  great  difficulty  that  the  purchase  can,  under  any 
circumstances,  be  sustained.'*  The  utmost  good  faith  {uberrima 
fides)  is  required  on  the  part  of  the  legal  adviser;  and  the  gen- 
eral rule  of  public  poHcy,  which  discountenances  transactions 
between  persons  who  are  situated  in  a  confidential  relation 
towards  each  other,  applies  with  particular  force  to  the  case  of 
attorneys-at-law  who  are  officers  of  the  court,  and  are,  on  that 
ground,  as  well  as  on  account  of  the  powerful  influence  which 
they  exercise  over  the  minds  of  their  clients,  restrained  from 
dealing  with  those  whose  interests  they  have  in  charge. 


See,  also,  as  to  the  effect  of  family 
relationship  upon  such  transactions, 
Harvey  v.  Mount,  8  Beav.  439;  Ken- 
nedy V.  Kennedy,  2  Ala.  571;  Dunn  v. 
Chambers,  4  Barb.  .376;  Sears  v. 
Shafer,  6  N.  Y.  268;  Smith  v.  Smith, 
l.'?4  Id.  62  (where  the  deed  was  not 
read);  Odell  v.  Moss,  137  Cal.  542. 

1  See  Tyrrell  v.  The  Bank  of  Lon- 
don, 10  H.  L.  Cas.  26;  Roby  v.  Cole- 
hour,  135  111.  300. 

2  He  must  prove  the  absence  of 
undue  influence,  or  the  "fraus  innexa 
clienti,"  as  it  is  termed.  See,  also. 
Ah  Foe  V.  Bennett,  35  Oreg.  231 ;  Cul- 
lop  r.  Leonard,  97  Va.  256;  Shrop- 
shire V.  Ryan,  111  Iowa,  677;  Va- 
nasse  v.  Reid,  111  Wis.  ,303;  Klein  v. 
Borchcrt.  89  .Minn.  377.  In  Fellows 
V.  Smith,  190  Pa.  .301,  a  contract 
between  attorney  and  client  and  a 
conveyance  made  to  the  son  of  the 
former  on  account  thereof  were  sus- 
tained. The  transaction  was  shown 
to  be  fair  and  to  be  free  from  any 
actual  fraud. 


3  Holman  v.  Lo.ynes,  4  De  G.,  M.  & 
G.  270;  Greenfield's  Estate,  14  Pa. 
489,  506.  See,  also,  Morgan  v. 
Minott,  6  Ch.  Div.  638,  and  Wright 
V.  Carter  [1903],  1  Ch.  27-50,  where 
Vaughan  Williams,  L.  J.,  said, 
speaking  of  such  a  gift,  that  "  it 
would  be  very  difficult  to  support  it " 
— a  guarded  statement.  See  Powell 
r.  Powell  [1900],  1  Ch.  243. 

<  Quoted  in  Stubinger  v.  Frey,  116 
(ia.  396.  An  attorney-at-law  who 
bargains  with  his  client  in  a  matter  of 
advantage  to  himself,  if  the  transac- 
tion is  to  be  sustained  in  equity, 
must  show  that  he  fully  and  faith- 
fully discharged  his  duty  to  his 
client,  not  only  by  refraining  from 
any  misrepresentation  or  conceal- 
ment of  any  material  fact,  but  by 
exercising  active  diligence  to  see  that 
his  client  was  fully  informed  of  the 
nature  and  effect  of  the  transaction 
and  of  the  attorney's  interest  in  the 
matter  involved.  Hill  v.  Hall,  191 
Mass.  253. 


CH.  II.] 


FRAUD. 


371 


The  question  is  not  whether  there  was  any  actual  imposition 
in  the  particular  case.  Lord  Loughborough,  in  Newman  v. 
Payne,  when  speaking  of  Lord  Hardwicke's  decision  on  this 
|)oint,  in  Walmesley  v.  Booth, ^  says  that  "it  was  the  case  of 
Jajjhet  Crook,  who  was  7nore  like  to  impose  than  be  imposed  on, 
yet  he  might  be  imposed  on;"  and  this  is  the  ground  upon  which 
courts  of  equity  have  ahvays  gone,  viz.,  the  fear  lest  the  client 
''might  be  imposed  on."  ^ 

This  rule  as  to  attorneys  will  apply  as  long  as  the  relation 
continues,  and  even  after  it  has  ceased,  if  the  transaction  takes 
place  under  the  still  subsisting  influence  of  that  relation.'^ 

It  will  not,  however,  apply  when  the  relation  has  ceased,  and 
the  influence  growing  out  of  the  same  has  terminated ;  '^  and 
when  the  attorney  has  assumed  the  hostile  attitude  of  a  pressing 
creditor,  he  may  deal  with  his  client  as  with  a  stranger.^ 

A  client  may  make  a  gift  to  his  counsel  in  his  will.® 

237.  Trustee  and  cesttd  qne  trust. 

The  relation  of  trustee  and  cestui  que  trust  is  a^so  one  of  pecu 
liar  confidence.  The  trustee  necessarily  has  ample  opportunities 
for  a  thorough  knowledge  of  the  value,  both  present  and  pro- 
spective, of  the  trust  estate,  of  which  the  cestui  que  trust,  not 
having  the  management  of  affairs  in  his  hands,  must,  to  a  great 
ex.tent,  be  ignorant ;  while  at  the  same  time  the  influence  which 


1  2  Atk.  25. 

2  Newman  v.  Payne,  2  Ves.  Jr.  200. 
See,  also.  King  v.  Savery,  5  H.  L.  Cas. 
626;  McPherson  v.  Watt,  3  App.  Cas. 
254;  Liles  v.  Terry  [1895],  2  Q.  B.  679; 
Readdy  v.  Pendergast,  55  L.  T.  (n.  s.) 
768;  Merritt  v.  Lambert,  10  Paige 
Ch.  352;  Mahan  v.  Smith,  6  Heisk. 
167;  Trotter  v.  Smith,  59  111.  240; 
Mott  V.  Harrington,  12  Vt.  199;  Miles 
V.  Ervin,  1  McCord  Ch.  524;  Smith  v. 
Brotherline,  62  Pa.  461 ;  Riegi  v. 
Phelps,  4  N.  Dak.  272;  Cunningham 
V.  Jones,  37  Kan.  477;  Cox  ik  Delmas, 
99  Cal.  104-124;  Mansfield  r.  Wal- 
lace, 217  111.  610;  Wendell  r.  Van 
Rensselaer,  1  Johns.  Ch.  344;  Levara 
V.  McNeny,  73  Neb.  414.  See  also, 
Perry  v.  Dicken,  105  Pa.  83,  and 
Herr  v.  Payson,   157  111.  244 — cases 


which  must  be  considered  as  excep- 
tional, and  Lewis  v.  Broun,  36  W.  Va. 
1,  where  the  recovery  was  barred  by 
laches. 

3  Henry  v.  Raiman,  25  Pa.  454;  and 
see  Beedle  v.  Crane,  91  Mich.  429. 
Nor  will  the  subsequent  relation  of 
attorney  and  client  affect  a  former 
transaction.  Saffcr  v.  Mast,  223  111. 
108;  Guinan  v.  Donnell,  201  Mo.  173. 

<  Wood  V.  Downes,  IS  Ves.  127; 
but  see  Troxcll  v.  Silverthorn,  45 
N.  J.  Eq.  330. 

5  Johnson  v.  P"'esemeyer,  3  De  G.  & 
J.  13. 

•5  Hindson  t.  Weatherill,  '>  De  G., 
M.  &  G.  301.  And  see  as  to  spiritual 
advisers,  McEnroe  v.  McEnroe,  201 
Pa.  477;  Caughey  v.  Bridenbaugh, 
208  Pa.  414. 


372 


FRAUD. 


[part  II. 


the  former  exercises  over  the  mind  of  the  latter  is  generally 
very  considerable.  The  general  rule,  therefore,  is,  that  the 
trustee  cannot  take  beneficially  by  purchase  or  gift  from  the 
cestui  que  trust.  The  transaction  is  ordinarily  voidable  at  the 
option  of  the  latter.^ 

But  the  gift  or  purchase  may  be  deprived  of  its  aspect  of 
presumptive  fraud  by  the  absence  of  those  elements  of  which 
fraud  is  made  up.  These  arc,  as  has  just  been  stated,  knowledge 
on  the  part  of  the  trustee,  ignorance  on  the  part  of  the  cestui 
que  trust,  and  influence  unduly  used  by  the  former  over  the 
mind  of  the  latter.  If,  therefore,  the  information  which  the 
trustee  has  is  in  no  way  superior  to  that  of  the  cestui  que  trust; 
if  the  latter  is  fully  informed  of  all  the  facts  of  the  case,  and 
their  probable  bearings  upon  the  value  of  the  property;  and 
if  he  is  acting  upon  independent  advice,  and  his  mind  is  entirely 
free  from  any  control  of  the  tmstee,  and  the  transaction  be  in 
itself  a  reasonable  one,  it  may,  under  these  circumstances,  be 
upheld.^  The  rule  under  consideration  grows  out  of  the  general 
principle,  explained  in  a  former  chapter,  that  a  tmstee  can  make 
no  profit  out  of  the  trust  estate.^ 

The  rule  does  not  apply  to  the  case  of  a  mere  dry  tmstee. 
The  position  of  such  a  trustee  gives  him  no  vantage  ground, 
either  of  superior  information  or  of  undue  influence,  over  the 
cestui  que  trust,  and  the  parties,  therefore,  deal  as  strangers,  and 
are  subject  to  the  ordinary  rules  of  buyer  and  seller.'' 

The  same  rule  as  that  which  exists  between  tmstee  and  cestui 
que  trust  applies  to  all  persons  who  occupy  a  fiduciary,  or  quasi 
fiduciary  relation — such  as  executors  or  administrators,^  direc- 


1  Coles  V.  Trecothick,  9  Ves.  234; 
Dougan  v.  Macpherson  [1902],  A.  C. 
197;  Smith  v.  Townshend,  27  Md. 
368;  Clarke  v.  Deveaux,  1  S.  C.  (n.  s.) 
IS  I;  Diller  r.  Bnibaker,  52  Pa.  498; 
Wistar's  App.,  54  Id.  60;  Parshall's 
App.,  65  Id.  224;  Spencer's  App.,  80 
Id.  332;  notes  to  Fox  v.  Mackreth,  1 
Lead.  Cas.  Eq.  115;  Perry  on  Trusts, 
§  195;  Ryle  v.  Ryle,  41  N.  J.  Eq.  582; 
Griffith  t).  Godey,  113  U.  S.  89; 
Richards  v.  Pitts,  124  Mo.  602;  Cole 
V.  Stokes,  113  N.  Car.  270;  Luding- 


ton  V.  Patten  et  al,  111    Wis.    208, 
242. 

2  See  Perry  on  Trusts,  §  195;  Hill 
on  Trustees,  158. 

3  See  ante,  §  143.  See,  also.  Brown- 
field's  Appeal,  193  Pa.  151. 

^Parkes  v.  White,  11  Ves.  226; 
Inlow  V.  Christy,  187  Pa.  191.  And 
one  legatee  may  buy  from  another, 
although  the  executor,  who  is  also 
the  husband  of  the  purchaser,  acts  as 
agent  in  the  transaction.  Dundas' 
Estate,  136  Pa.  318.     One  who  ren- 


5  State  V.  Culhane,  78  Conn.  622. 


CH.  II.] 


FRAUD. 


373 


tors  of  a  corporation  or  a  society/  agents,^  medical  or  religious 
advisers,^  husband  and  wife/  a  man  and  woman  engaged  to  be 


ders  gratuitous  assistance  to  a  friend 
does  not  by  so  doing  enter  into  a  con- 
fidential relation  with  him.  Fletcher 
V.  Bartlett,  157  Mass.  113. 

1  Richardson  v.  Green,  133  U.  S.  30; 
Sheffield  Soc.  v.  Aizlewood,  44  Ch.  D. 
412;  Williamson  v.  Krohn,  31  U.  S. 
App.  325;  Bird  C.  &  I.  Co.  v.  Humes, 
157  Pa.  278;  Pacific  Vinegar  Works 
V.  Smith,  145  Cal.  352.  See  Glenwood 
Mfg.  Co.  V.  Syme,  109  Wis.  355; 
Janney  v.  Minneapolis  Industrial  Ex- 
position, 79  Minn.  487;  Patterson 
V.  Smelting  Works,  35  Oreg.  96;  New 
Memphis  Gas  Light  Co.  Cases,  105 
Tenn.  268;  Taylor  v.  Mitchell,  80 
Minn.  492;  Mosher  v.  Sinnott,  20 
Colo.  App.  454;  Northwestern  Land 
Ass'n  V.  Grady,  137  Ala.  219;  De 
Bardeleben  v.  Bessemer  Land  Co., 
140  Ala.  621.  But  a  sale  of  stock  by 
a  stockholder  to  a  director  is  not 
within  the  rule  applicable  to  dealings 
between  parties  in  confidential  rela- 
tions. Carpenter  v.  Danforth,  52 
Barb.  581;  Percival  v.  Wright  [1902], 
2  Ch.  421;  Walsh  v.  Goulden,  130 
Mich.  531.  Unless  the  director  is 
also  the  managing  officer.  Stewart 
V.  Harris,  69  Kan.  498.  And  a  mem- 
ber of  a  corporation  may  sell  to  the 
corporation.  See  the  remarks  of 
Lindsey,  L.  J.,  in  Farrar  v.  Farrars, 
Limited,  40  Ch.  D.  409-410.  Nor  are 
directors  of  a  corporation  technical 
trustees.    They  are  mandatories,  and 


are  bound  to  use  no  more  than  or- 
dinary skill  and  diligence.  Spering's 
Appeal,  71  Pa.  11;  Watts's  Appeal, 
78  Id.  392;  Van  Weel  v.  Winston, 
115  U.  S.  228;  Briggs  v.  Spaulding, 
141  Id.  132  (infra);  Barr  v.  Pitts- 
burg Glass  Co.,  17  U.  S.  App.  124- 
141.  See,  however,  the  remarks  of 
Bacon,  V.  C,  in  Flitcroft's  Case,  21 
Ch.  D.  525.  As  to  the  conduct  of 
directors,  it  may  be  remarked  that 
it  is  to  be  gauged  (as  is  that  of  all 
other  gratuitous  mandatories)  not  by 
the  ordinary  care  which  business  men 
give  to  their  own  affairs,  but  by  the 
care  which  is  usually  given  by  similar 
gratuitous  mandatories.  In  re  For- 
rest of  Dean  Coal  Mining  Co.,  10  Ch. 
D.  450;  In  re  Faure  Electric  Co.,  40 
Id.  141;  Briggs  v.  Spaulding,  141 
U.  S.  132;  Swentzel  v.  Penn  Bank, 
147  Pa.  140.  A  stockholder  has  a 
right  to  deal  with  the  corporation  at 
arm's  length.  Russell  v.  Fuel  Gas 
Co.,  184  Pa.  107;  Nye  v.  Storer,  108 
Mass.  55;  but  a  majority  of  stock- 
holders cannot  authorize  a  sale  of 
corporate  assets  and  sell  to  them- 
selves. Chicago  Hansom  Cab  Co.  v. 
Yerkes,  141  111.  320.  See,  in  this 
connection.  Parsons  v.  Tacoma  Smelt- 
ing and  Refining  Co.,  25  Wash.  492, 
and  Glengarry  Consol.  Min.  Co.  th 
Boehmer,  28  Colo.  1 ;  Barker  v.  Mon- 
tana Gold  Mining  Co.,  35  Mont.  351. 
2  See    Barrow    v.    Rhinelander,    1 


3  Ahearne  v.  Hogan,  1  Drury,  310; 
Greenfield's  Est.,  24  Pa.  232;  Unruh 
V.  Lukens,  166  Id.  324;  King  v.  Ord- 
way,  73  la.  735;  Newman  v.  Smith, 
77  Cal.  22;  Connor  v.  Stanley,  72 
Id.  556;  Finegan  v.  Theisen,  92  Mich. 
173.  As  to  the  validity  of  gifts  from 
nuns  to  their  convents,  see  Allcard  v. 
Skinner,  36  Ch.  D.  145,  ante,  §  231; 
Whyte  V.  Meade,  2  Ir.  Eq.  420;  Mc- 
Carthy V.  McCarthy,  9  Id.  620;  s.  c. 


nomine  Fulham  v.  McCarthy,  1  H.  L. 
Cas.  703.  See,  also,  In  re  Metcalfe's 
Trusts,  2  De  G.,  J.  &  Sm.  122;  article 
in  10  Jur.  (n.  8.)  91;  note  to  Hu- 
guenin  v.  Baseley,  2  Lead.  Cas.  Eq. 
581  (4th  Eng.  ed.);  Norfleet  v.  Beall, 
82  Miss.  538;  Viallet  v.  Ry.  Co.,  30 
Utah,  260. 

*  Darlington's  Appeal,  86  Pa.  512; 
Ilgenfritz  v.  Ilgenfritz,  116  Mo.  429; 
Harraway  v.  Harraway,  136  Ala.  499. 


374 


FRAUD. 


[part  II. 


married  ^ — in  fine,  to  all  those  who  occupy  positions  of  tmst  and 
confidence  towards  others.^  And  the  rule  may  be  applied  to 
instances  where,  as  in  the  case  of  dealings  between  a  surviving 
partner  of  a  firm  and  the  personal  representative  of  the  deceased 
partner,  although  there  may  not  be  any  confidential  relation 
which  gives  rise  to  the  existence  and  exercise  of  undue  influence, 
yet  there  may  nevertheless  exist  (as  was  aptly  said  in  a  case  in 
Virginia)  "that  dangerous  inequality  of  knoiiiedge  with  respect  to 
the  subject-matter"  which  will  result  in  the  transaction  being 
set  aside  if  it  does  not  turn  out,  after  jealous  scrutiny,  to  have 
been  reasonable,  fair,  and  just.^ 

238.  Fiduciary  can  make  no  profit ;   Tyrrell  v.  Bank. 

Equity  not  only  views  gifts  and  contracts  which  are  made 
or  take  place  between  parties  occupying  a  confidential  relation 
with  a  jealous  eye,  but  it  goes  further,  and  forbids  any  person 
standing  in  a  fiduciary  position  from  making  any  profit,  in  any 
way,  at  the  expense  of  the  party  whose  interests  he  is  bound  to 
protect,  without  the  fullest  and  most  complete  disclosure.'' 
This  proposition  leads  us  to  an  interesting  class  of  cases,  of  which 
the  leading  one  may  be  said  to  be  Tyrrell  v.  The  Bank  of  Lon- 
don, in  the  House  of  Lords.^    In  that  case  there  was  in  existence 


Johns.  Ch.  550;  Hall  v.  Knappen- 
berger,  97  Mo.  509;  Le  Gendre  v. 
Byrnes,  44  N.  J.  Eq.  372;  Darling- 
ton's Estate,  147  Pa.  624;  Kyle  v. 
Perdue,  95  Ala.  579;  Triplett  v. 
Woodward,  98  Va.  187;  Goodhue 
Farmers',  etc.,  Co.  v.  Davis,  81  Minn. 
210;  City  of  Findlay  v.  Pertz,  31 
U.  S.  App.  340-35G.  When,  however, 
the  relation  of  principal  and  agent 
has  terminated  and  a  general  settle- 
ment is  made,  actual  fraud  must  be 
proved  in  order  to  disturb  it.  Court- 
right  V.  Barnes,  2  McCrary,  532. 
See,  also,  Mitchell  v.  Homfray,  8 
Q.  B.  Div.  587;  Van  Dusen  v.  Big- 
elow,  13  N.  D.  277. 

1  Barker  v.  Barker,  126  Ala.  503; 
Russell  V.  Russell,  60  X.  J.  Eq.  282. 

2  See  Hill  on  Tru.stees,  547  (4th 
Am.  ed.);  Ford  v.  Olden,  L.  R.  3  Eq. 
461;  McKe^  v.  Griggs,  51  X.  J.  Eq. 


178;  Scattergood  v.  Kirk,  192  Pa.  267; 
Tribou  v.  Tribou,  96  Me.  305;  Ryan 
V.  Ryan,  174  Mo.  279.  It  has  been 
held  that  there  is  no  such  relation 
between  co-tenants.  Herron  v.  Her- 
ron,  71  la.  428;  Kennedy  v.  De  Traf- 
ford  [1896],  1  Ch.  762.  But  the 
weight  of  American  authority  would 
seem  to  be  the  other  way.  See  ante, 
§  93.  There  is  no  presumption  of 
fiduciary  relation  between  brothers. 
Shevlin  v.  Shevlin,  96  Minn.  398; 
Fish  V.  Fish,  235  111.  396. 

3Tennant  v.  Dunlop,  97  Va.  234. 
And  as  to  directors  of  corporations, 
see  Oliver  v.  OHver,  118  Ga.  362. 

*  The  language  used  in  expressing 
this  doctrine  was  quoted,  with  ap- 
proval, in  Loudenslager  v.  Woodbury 
Heights  Land  Co.,  58  X.  J.  Eq.  556. 

■■'  10  H.  L.  Cas.  26. 


CH.  II.]  FRAUD.  375 

a  project  to  start  a  new  bank  in  London,  and  among  the  pro- 
jectors of  the  scheme  was  the  appellant,  a  solicitor,  whose  firm, 
it  had  been  agreed,  were  to  be  employed  as  the  solicitors  of  the 
company.    The  appellant,  hearing  that  a  certain  lot  of  ground 
was  for  sale,  suitable  for  the  purposes  of  the  baid-c,  entered  into 
an  arrangement  with  a  person  who  controlled  the  option  to  buy 
from  the  owners,  whereby  the  appellant  became  interested  in 
the  option.     He  then  induced  his  co-projectors  to  purchase  a 
portion  of  the  property  at  an  advance,  he  (of  course)  making  a 
certain  profit  by  the  transaction.     After  the  arrangement  was 
discovered,  o  bill  was  filed  by  the  company  for  the  purpose  of 
obtaining  relief;  and  it  was  held  that  the  appellant  was  account- 
able to  the  company  for  the  profit  which  he  had  made.    This 
case  is  instructive  as  showing  the  exact  measure  of  relief  which  a 
court  of  equity  affords  in  such  cases,  and  the  grounds  upon  which 
that  relief  rests.    The  company  (it  was  held)  had  not  a  mere 
right  to  rescind  the  bargain  into  which  they  had  entered;  nor, 
on  the  other  hand,  was  the  appellant  held  to  be  a  trustee  of  any 
])roperty  other  than  that  which  he  had  actually  bought  and 
conveyed  to  the  company.    The  decision,  therefore,  was  that  the 
company  were  not  obliged  to  repudiate  the  transa(!tion  alto- 
gether, but  were  entitled  to  take  the  lot,  which  had  lx>en  con- 
veyed to  them,  at  the  price  which  it  had  cost  Tyrrell;  in  other 
words,  that  as  to  that  particular  property  Tyrrell  could  make  no 
gain  at  the  company's  expense.^     But  it  was  further  held  that 
the  appellant's  liability  to  account  stopped  with  that  particular 
lot,  and  did  not  extend  to  other  property  which  had  been  in- 
cluded in  the  purchase  from  the  original  owner. - 

In  Costa  Rica  Rwy.  Co.,  Ltd.,  v.  Forwood,^  Rigby,  L.  J.,  thus 
stated  the  general  doctrine : 


1  See  Bagnall  v.  Carlton,  6  Ch.  D.  been  held  that  their  contract  for  a 

385;   Redhead   v.    Parkway   Driving  diversion  of  the  profits  realized  from 

Club,  148  N.  Y.  471;  Yale  Gas  Stove  selling  the  stocks  and  bonds  is  nut 

Co.  V.  Wilcox,  64  Conn.  102;  Stanley  illegal.      McCracken   v.    Robison,    14 

V.    Luse,  36  Oreg.   25;    McKinley   v.  U.  S.  App.  602. 

Williams,   36  U.  S.   App.   749;  Cen-  2  ggg  the  argument  of  Sir  Rounddl 

tral  Land  Co.  v.  Obenchain,  92  Va.  Palmer,  afterwards  Lord  Chanctllor 

130.       See,     however,     McMillan     v.  Selborne,  and  the  manner  in  which 

Arthur,  98  N.  Y.   167.     And  where  that  argument  was  answered  by  the 

the  promoters  own  all  the  stock  of  a  court,  10  H.  L.  Cas.  31,  45. 

corporation,   and   while   directors   in  ^  [1901]  1  Ch.  753. 
name  are  principals  in  fact,   it  has 


376  FRAUD.  [part  II. 

''The  equitable  principle  upon  which  a  man  in  a  fiduciary 
relation  who  makes  what  are  called  secret  profits  is  bound'  to 
give  them  up  to  the  principal  for  whom  he  is  acting,  is  a  most 
salutary  one  and  of  general  application  and  I  do  not  intend  in 
the  observations  I  am  about  to  make  to  say  anything  that  will 
in  any  way  infringe  upon  that  principle.  Many  people  think 
it  a  hard  principle,  but  to  those  who  have  had  experience  in 
such  matters  it  is  found  to  be  a  principle  of  necessary  appli- 
cation in  order  to  make  sure  that  people  will  do  their  duty  when 
they  are  acting  under  circumstances  of  unusual  difficulty." 

In  this  connection  a  recent  decision  of  the  English  Court  of 
Appeal,  Chancery  Division,  may  be  noted.  One  Archer  was 
induced  by  one  R.  M.  Smith,  a  promoter  of  a  corporation,  to 
become  a  director,  and  for  that  purpose  to  take  shares,  the  pro- 
moter promising  Archer  to  take  the  shares  off  his  hands  when  re- 
c|uested.  Accordingly,  in  1887,  Archer  became  a  director,  took 
fifty  shares,  paid  £500,  and  remained  in  the  board  of  directors 
until  June,  1888,  when  he  resigned.  Upon  his  resignation,  the 
fifty  shares  were  repurchased  at  the  same  price  by  Smith.  It 
was  held  that  this  transaction  was  a  fraud  on  the  company  and 
Archer  was  ordered  to  pay  the  £500  to  the  official  liquidator. 
"The  director  of  a  company,"  said  Bowen,  L.  J.,  "is  placed  upon 
the  board  in  order  that  he  may,  among  other  duties,  as  it  appears 
to  me,  watch  the  proceedings  of  the  promoter  who  is  acting  as 
agent  for  the  vendor.  Is  it  lawful,  is  it  tolerable  either  in  equity 
or  in  law,  that  a  promoter  should  be  at  liberty  to  have  a  director 
in  his  pay?  Certainly  not.  But  he  is  really  having  the  director 
in  his  pay,  if  he  is  guaranteeing  the  director  against  loss  in  re- 
spect of  shares  which  the  director  is  bound  to  hold  in  order  to 
qualify  himself  under  the  articles.  As  I  said  during  the  argu- 
ment, the  director  is  really  a  watch-dog,  and  the  watch-dog  has 
no  right,  without  the  knowledge  of  his  master,  to  take  a  sop  from 
a  possible  wolf."  ^ 

239.  Promoters  of  companies. 

This  rule  is  thoroughly  established  both  in  England  and  in 

1  Archer's  Case  [1802],   1  Ch.  .341.  Railway  Company,    146  U.  S.   537- 

See,  in  this  connection,  the  language  565;   and   the   ruling   in   McClure   v. 

of  Mr.  Justice  Brown,  of  the  Supreme  Law,  161  N.  Y.  78,  and  the  decision 

Court  of  the  United  States,  in  Mc-  in  Electric  Light  Co.  v.  Bates,  68  Vt. 

Gourkev  v.  Toledo  and  Ohio  Central  579. 


CH.  11.] 


FRAUD. 


377 


the  United  States.^  The  difficulty  is  in  its  application;  for  it  is 
equally  well  established  that  there  is  no  principle  of  equity 
which  prohibits  a  man  from  buying  a  piece  of  property,  and 
afterwards  saying  to  those  wlio  subscciuently  unite  with  him 
in  getting  up  a  company:  "I  begin  the  transaction  here — I 
have  purchased  land,  no  matter  how,  or  from  whom,  or  at  what 
price — I  will  sell  the  land  at  so  much."  -  The  test  seems  to  be, 
whether  at  the  time  of  the  acquisition  of  the  property  by  the  de- 
fendant, he  was  then  acting  in  any  way  on  the  company's  behalf. 
If  he  was,  he  can  make  no  profit  at  the  company's  expense  by  a 
purchase  and  resale.^ 

Moreover,  promoters,  standing  as  they  do  in  a  fiduciary  rela- 
tion towards  subscribers  to  shares,  should  give  the  fullest  in- 
formation as  to  their  own  connection  with  the  enterprise.'* 

The  redress  which  is  afforded  to  the  cestui  que  trust  in  cases 
of  fraud  by  trustees  or  other  fiduciaries  is  either  rescission  or 


1  See  Hitchins  v.  Congreve,  4  Russ. 
574;  Beck  v.  Kantorowicz,  3  K.  &  J. 
230;  New  Sombrero  Phosphate  Co.  v. 
Erlanger,  5  Ch.  D.  73;  aff'd  in  3  App. 
Cas.  1218;  Gluckstein  7^.  Barnes 
[1900],  A.  C.  240-2.53;  McAleer  v. 
McMurray,  58  Pa.  126;  Simons  v. 
The  Vulcan  Oil  Co.,  61  Id.  202; 
McElhenny's  Appeal,  Id.  192  (opin- 
ion of  Sharswood,  J.);  Short  v. 
Steven.son,  63  Id.  95;  Rice's  Appeal, 
79  Id.  204;  Yeaney  v.  Keck,  183  Id. 
540;  Russel  v.  Fuel  Gas  Co.,  184  Id. 
102;  Bailey  v.  Coal  Co.,  69  Id.  340; 
Great  Luxembourg  Ry.  Co.  v.  Mag- 
nay,  25  Beav.  586;  Collins  v.  Case,  23 
Wis.  230;  Hitchcock  v.  Hustace,  14 
Hawaii,  232 ;  Lindley  on  Partnership, 
481.  See  article  in  16  Am.  Law  Rev. 
671-6C2.  Also  Guest  v.  Smythe,  L. 
R.  5  Ch.  551,  and  the  remarks  upon 
this  case  in  the  note  to  Fox  v.  Mack- 
reth,  1  Lead.  Cas.  Eq.  161  (4th  Eng. 
ed.) ;  Whitman  v.  Bowden,  27  S.  C.  53; 
Tegarden  v.  Big  Star  Zinc  Co.,  71 
Ark.  277;  Fred  Macey  Co.  r.  Macey, 
143  Mich.  138. 

2  See  Foss  i\  Harbottle,  2  Hare, 
489;    Kent    v.    Freehold    Land    and 


Brickmaking  Co.,  L.  R.  4  Eq.  588; 
Densmore  v.  Densmore,  64  Pa.  49; 
McElhenny  v.  Hubert  Oil  Co.,  61  Id. 
188;  Richardson  v.  Graham,  45  W. 
Va.  134,  and  Cover's  Case,  1  Ch.  D. 
182. 

^  In  the  absence  of  actual  fraud  the 
mere  fact  that  the  defendant  was  a 
promoter  does  not,  under  the  latest 
English  cases,  seem  to  justify  any 
other  relief  than  rescission.  Burland 
('.  Earle  [1902],  A.  C.  99;  Erlanger  c. 
New  Sombrero  Phosphate  Co.,  3 
App.  Cas.  1236  and  1242;  In  re  Cape 
Breton  Co.,  29  Gh.  D.  803;  Lady  well 
Mining  Co.  v.  Brookes,  35  Id.  400; 
Farrar  v.  Farrars,  Limited,  40  Iil. 
395;  Exter  v.  Sawyer,  146  Mo.  :i()'J, 
and  Yeiser  v.  United  States  Boar  i 
&  Paper  Co.,  46  C.  C.  A.  567;  Cul)a 
Colony  Co.  v.  Kirby,  149  Mich.  453. 

*  In  re  Leeds  and  Hanley  Theatn  s 
[1902],  2  Ch.  809;  In  re  Olympir. 
[1898],  2  Ch.  153;  on  appeal  sub  tium.. 
Gluckstein  v.  Barnes  [1900],  A.  C. 
240.  See  Old  Dominion  Copper  Co. 
i\  Bigelow,  188  Mass.  315,  and  Lady 
Forrest  Gold  Mine  [1901],  1  Ch, 
582. 


378 


FRAUD. 


[part  II. 


account,  according  to  the  circumstances  of  the  case.^  If  the 
trustee  has  resold  the  estate,  he  can  be  made  to  account  for  what 
he  has  received  over  and  above  the  purchase-money  he  has 
himself  paid;  and,  in  England,  he  is  chargeable  with  interest 
at  the  rate  of  £4  per  cent.^  The  rule  in  this  country  as  to  the 
trustee's  liability  to  account  is  the  same.^  If  the  property  has 
not  been  sold  by  the  trustee,  and  the  cestui  que  trust  wishes  to 
have  it  back  again,  he  is  entitled  to  a  decree  for  a  reconveyance. 
This  decree  will  be  made  upon  the  terms  of  the  cestui  que  trust 
repaying  the  purchase-money  with  interest,  and  whatever  has 
been  expended  by  way  of  permanent  improvement  to  the  estate, 
with  an  allowance  for  acts  which  have  deteriorated  its  value 
and  an  account  of  the  rents  and  profits. "*  If  the  cestui  que  trust 
does  not  wish  for  a  reconveyance,  or  if  the  case  is  one  in  which 
a  trustee  for  sale  (as  an  assignee  in  bankruptcy,  for  example), 
has  himself  been  the  purchaser,  the  course  is  that  the  expense 
of  repairs  and  improvements  shall  be  added  to  the  purchase- 
money  (after  making  an  allowance  for  deterioration),  and  that 
the  estate  shall  be  put  up  at  the  accumulated  sum ;  if  any  one 
makes  an  advance  upon  that  sum,  the  trustees  shall  not  have  the 
estate;  if  no  one  does,  he  will  be  held  to  his  purchase.^  If  an 
agent  to  purchase  attempts  to  make  an  illegal  profit,  the  princi- 
pal has  a  right  to  take  the  estate  at  what  it  cost  the  agent.^ 

The  question  has  sometimes  arisen  whether,  when  property 
has  been  obtained  by  violation  of  fiduciary  relations  or  some 
other  fraud,  the  remedy  of  the  injured  party  is  simply  rescission 
or  account,  or  whether  he  is  entitled  to  compel  the  wrongdoer  to 
pay  the  true  value  of  the  article.  Instances  of  this  point  some- 
times occur  when  directors  of  a  corporation  take  shares  of  stock 
at  less  than  par,  and  the  question  then  is,  whether  the  directors 


1  The  injured  party  is  entitled  to 
file  a  bill  in  equity.  He  is  not  to  be 
relegated  to  a  common-law  action  for 
damages.  Bancroft  v.  Bancroft,  110 
Cal.  374. 

2  Fox  V.  Mackreth,  3  Cox,  320;  Hall 
V.  Hallet,  1  Id.  134;  Ex  parte  Reyn- 
old.s,  ')  Ves.  707. 

3  Lazarus's  Lessee  v.  Bryson,  3 
Binn.  54,  58;  Jackson  v.  Walsh,  14 
Johns.  R.  407,  415;  Hawley  r. 
Cramer,  4  Cow.  719;  Robbins  c. 
Bates,    4    Cush.    104;    Hoffman    v. 


The   Cumberland   Coal  Co.,  16  Md. 
456. 

*  Popham  V.  Exham,  10  Jr.  Ch.  440; 
notes  to  Fox  v.  Mackreth,  1  Lead. 
Cas.  Eq.  235,  257  (4th  Am.  ed.). 

5  Ex  parte  Hughes,  6  Ves.  624;  Ex 
parte  Lacey,  Id.  630;  Ex  parte  Ben- 
nett, 10  Ves.  400;  Marshall  ?•.  Carson, 
38  N.  J.  Eq.  250;  American  note  to 
Fox  V.  Mackreth,  1  Lead.  Cas.  Eq. 
257  (4th  Am.  ed.). 

6  TjTrell  V.  Bank  of  London 
{supra). 


CH.  II.] 


FRAUD, 


379 


can  be  made  to  pay  par.  In  England  the  rule  is,  that  the  direc- 
tor can  only  be  compelled  to  return  the  stock,  or,  if  he  has  sold  at 
a  profit,  to  account  for  that  profit.^  But  a  different  view  has 
been  taken  by  the  Supreme  Court  of  the  United  States.' 

It  was  remarked  in  a  former  part  of  this  treatise,  that  trustees 
could  not,  without  leave  of  the  court,  buy  at  their  own  sales. ^ 
The  same  remark  is  applicable  to  all  parties  whose  duty  requires 
tliem  to  sell  for  the  benefit  of  another.  They  cannot  sell  to 
themselves.  It  is  repugnant  to  common  honesty  and  justice  that 
the  same  party  should  be  both  vendor  and  purchaser.  If  he  at- 
tempts so  to  act,  it  is  a  fraud."* 

Before  leaving  this  subject  it  may  be  observed  that  benefits 
obtained  by  undue  influence  cannot  be  held  by  third  parties 
although  they  may  be  innocent  of  the  fraud.  When  a  gift  is 
made  under  such  circumstances,  "let  the  hand  receiving  it  be 
ever  so  chaste,  yet  if  it  comes  through  a  polluted  channel,  the 
obligation  of  restitution  will  follow  it."  ^  Of  course,  where  the 
property  comes  into  the  hands  of  a  bona  fide  purchaser  for  value 
and  without  notice  of  the  fraud,  the  rule  is  different. 


1  See  Currie's  Case,  3  De  G.,  J.  & 
Sm.  367;  Carling's  Case,  1  Ch.  D. 
115;  De  Ruvigne's  Case,  5  Id.  306; 
Anderson's  Case,  7  Id.  94.  See,  also, 
Foreman  v.  Bigelow,  18  N.  B.  Reg. 
457;  Pearson's  Case,  5  Ch.  D.  336;  and 
Archer's  Case  [1892],  1  Ch.  322. 

2  Hawley  ?'.  Upton,  102  U.  S.  314. 
See,  also,  Upton  v.  Tribilcock,  91  Id. 
45;  Chupp  V.  Upton,  95  Id.  666;  Pull- 
man V.  Upton,  96  Id.  328;  Hatch  v. 
Dana,  101  Id.  205;  Flinn  v.  Bagley, 
7  Fed.  Rep.  785,  where  the  cases  are 
reviewed. 

3  Ante,  §§94  and  143.     See,  also, 


Frank's  Appeal,  59  Pa.  195;  Camp- 
bell V.  McLain,  51  Id.  200;  Ogdcn 
V.  Larrabee,  57  111.  389;  Colgate  v. 
Colgate,  32  N.  J.  Eq.  362;  Hindman 
V.  O'Connor,  54  Ark.  627. 

*  See  Norris  v.  Tayloe,  49  111.  18 
Greenwood  v.  Spring,  54  Barb.  375 
North  Baltimore  Build.  Assoc,  v 
Caldwell,  25  Md.  423;  Carter  v 
Thompson,  41  Ala.  375;  Harris  v 
Parker,  Id.  604. 

5  Per  Chief  Justice  Wilmot  in 
Bridgman  v.  Green,  Wilm.  58,  64; 
s.  c.  2  Ves.  Sr.  627. 


380 


FRAUD. 


[part  II. 


SECTION  IV 

FRAUD  AFFECTING  THIRD  PARTIES;   GENERAL  RULES  AS  TO 

FRAUD. 


240.  Subdivisions  of  frauds  of  this 

class;  fraud  upon  creditors. 

241.  Statute  13  Elizabeth,  c.  5. 

242.  Jurisdiction  of  equity  in  cases 

under  the  statute. 

243.  Conveyance  must  be  for  a  good 

consideration,  and  bona  fide. 

244.  Moral  obligations;  consideration 

of  marriage. 

245.  Voluntary     transfers;     convey- 

ances by  persons  indebted. 

246.  Conveyances  of  property  which 

could  not  be  reached  by  exe- 
cution. 

247.  Gifts  from  husband  to  wife. 

248.  Parties    by    whom    fraudulent 

conveyances  may  be  avoided. 

249.  Secret  agreements  touching  com- 

position deeds. 

250.  Fraud    upon    subsequent    pur- 

chasers.    Statute     27     Eliz., 
c.  4. 

251.  Difference  between  the  EngUsh 

and  American  rules. 

252.  Statutes  not  applicable  to  per- 

sonal chattels. 


253.  Fraud  on  marital  rights;  Strath- 

more  V.  Bowes. 

254.  Ignorance  of  the  husband  as  to 

the  existence  of  property  im- 
material. 

255.  Circumstances  which  constitute 

fraud  on  marital  rights. 

256.  Fraud  on  powers;  Aleyn  v.  Bel- 

ch ier. 

257.  Appointment    must    be    made 

solely  to  carry  out  the  purpose 
of  the  power;  Topham  v.  The 
Duke  of  Portland. 

258.  Admissibility  of  parol  evidence 

to  vary  or  contradict  written 
instruments  in  cases  of  fraud; 
Woollam  V.  Hearn;  Gillespie 
v.  Moon. 

259.  How    the    right    to    impeach   a 

fraudulent  transaction  may 
be  lost;  confirmation;  release; 
acquiescence. 

260.  Delay;  bona  fide  purchasers  for 

value. 


240.  SuhdiviHioiiH  of  frauds  of  this  class ;  fraud  upon 
creditors. 

The  last  class  of  frauds  embraces  those  which  do  not  operate  to 
deceive  either  of  the  iniiiiediate  parties  to  the  transaction,  but 
which  affect  injuriously  the  interests  of  third  persons. 

Frauds  of  this  class  may  be  divided,  as  respects  the  injured 
[)arties,  into  (1)  Frauds  upon  creditors;  (2)  Frauds  upon  pur- 
chasers; (3)  Frauds  upon  marital  rights;  and  (4)  Frauds  upon 
l)Owers. 

The  first  of  these  subdivisions  of  fraud  arises  in  this  way: — 
,\n  almost  universal  incident  to  property,  when  possessed  abso- 
lutely by  a  person  sui  juris,  is  the  power  of  alienation.  Sub- 
ject to  some  few  restrictions — such  as  those  imposed  (in  Eng- 


11 


CH.  II.]  FRAUD.  381 

land)  by  the  Statutes  of  Mortmain,  and  the  like — a  man  maj' 
sell,  exchange,  or  give  away  his  lands  and  goods  when  and  to 
whom  he  pleases. 

If,  however,  a  man  is  in  the  position  of  a  debtor,  this  absolute^ 
right  of  alienation  is  qualified  and  restrained  by  the  principle 
that  the  power  of  disposition  is  not  to  be  exercised  for  the  pur- 
pose of  defrauding  his  creditors,  or  defeating  their  lawful  right 
to  subject  his  estate  to  the  satisfaction  of  their  claims.  Hence, 
almost  all  systems  of  jurisprudence  discountenance  alienations 
which  are  fraudulent  as  to  creditors,  and  provide  means  whereby 
this  species  of  wrong  may  be  redressed. 

241.  Statute  13  Elizabeth,  c.  5. 

Conveyances  in  fraud  of  creditors  were,  it  seems,  voidable  at 
common  law.*  However,  whether  it  was  that  this  was  originally 
considered  a  doubtful  question,  or  whether  the  frequency  and 
variety  of  these  fraudulent  alienations  were  so  great  that  it  was 
deemed  proper  to  affirm  the  conmion  law  by  positive  legislation ; 
certain  it  is,  that  from  very  early  times  statutes  were  passed  for 
the  purpose  of  protecting  the  rights  of  creditors  against  such 
covinous  practices. 

Thus,  as  early  as  the  reign  of  Edward  III.,  a  statute  was 
passed  which  recited  that  divers  persons  had  given  their  tene- 
ments and  chattels  to  their  friends  by  collusion,  and  had  after- 
wards fled  to  the  franchise  at  Westminster  or  other  privileged 
places,  and  had  lived  a  "great  time  with  a  high  countenance  of 
another  man's  goods,"  and  then  went  on  to  enact  that  if  it  were 
found  that  the  said  gifts  were  actually  made  by  collusion,  the 
said  creditors  should  have  execution  of  the  said  tenements  and 
chattels  as  if  no  such  gifts  had  been  made.^ 

The  most  celebrated  of  these  statutes  is  that  of  13  Eliz.,  c.  5.' 

This  act,  after  reciting  that  "feoffments,  gifts,  grants,  aliena- 
tions, conveyances,  bonds,  suits,  judgments,  and  executions  have 
been  contrived  of  malice,  fraud,  covin,  collusion,  etc.,  to  delay, 

'  See  notes  to  Twyne's  Case,  1  Sm.  See,  also,  Stats,  of  3  Hen.  VII.,  c.  4; 

Lead.  Cas.  33;  Cadogan  v.  Kennett,  2  R.  II.,  c.  3;  Heath  v.  Page,  63  Pa. 

2  Cowp.  4.32;  Clements  v.  Moore,  6  121. 

AVall.  299,  312;  Clark  v.  Douglass,  62  3  The  Statute  of  27  Eliz.,  c.  4,  was 

Pa.  408.    See  Davis  v.  Schwartz,  155  (as  is  well  known)  passed  to  protect 

U.S.  631.  the  rights  of  subsequent  purchasers. 

^.50    Edw.    III.,    V.    6;    note    to  See  pos<,  §  250. 
Twyne's  Case,  1  Sm.  Lead.  Cas.  33. 


382 


FRAUD. 


[part  II. 


hinder,  or  defraud  creditors  or  others  of  their  just  and  lawful 
actions,  suits,  debts,  accounts,  damages,"  etc.,  proceeds  to  enact 
that  every  feoffment,  etc.,  of  land,  tenements,  hereditaments, 
goods  and  chattels,  or  any  of  them,  by  writing  or  otherwise, 
and  all  and  every  bond,  suit,  judgment,  and  execution,  made 
for  any  intent  and  purpose  before  declared  and  expressed,  shall 
be,  as  against  that  person,  his  heirs,  successors,  executors,  etc., 
whose  actions,  suits,  etc.,  are  or  might  be  in  any  wise  disturbed, 
hindered,  delayed,  or  defrauded,  utterly.void.^ 

242.  Jurisdiction  of  equity  in  cases  under  tlie  statute. 

Equity  has  concurrent  jurisdiction  with  law  over  frauds 
under  these  statutes ;  and  the  same  rules  of  construction  are 
adopted  in  both  courts.^  Where  property,  which  is  legally 
liable  to  be  taken  in  execution,  has  been  fraudulently  conveyed 
or  encumbered,  the  jurisdiction  is  concurrent,  as  the  creditor 
may  either  issue  an  execution  at  law,  or  file  a  bill  in  equity  to 
have  the  conveyance  set  aside. ^  Where,  however,  the  property 
is  such  that  it  was  never  subject  to  execution  at  law,  the  only 
remedy  is  in  chancery.'* 

243.  Conveyance  must  be  for  a  good  consideration,  and 

bona  jiiJc. 
Two  general  questions  arise,  under  the  statute  of  Elizabeth; 


1  This  statute  has  been  substan- 
tially re-enacted  and  its  provisions 
adopted  in  most  of  the  United  States. 
2  Kent's  Com.  440. 

2  Note  to  Sexton  v.  Wheaton,  1 
Am.  Lead.  Cas.  58,  59;  Hopkirk  v. 
Randolph,  2  Brock.  133;  Little  v. 
Ragan,  83  Ky.  321. 

3  1  Am.  Lead.  Cas.  49.  See  Orr  v. 
Peters,  197  Pa.  614;  Swift  v.  Arents, 
4  Cal.  390;  Blonkinsopp  v.  Blenkin- 
sopp,  1  De  G.,  M.  &  G.  500;  Sheafe  v. 
Sheafe,  40  N.  H.  516;  Lillard  v. 
McGee,  4  Bibb,  166;  Scott  v.  The 
Indianapolis  Wagon  Works,  68  Ind. 
75;  Cook  v.  Johnson,  12  N.  J.  Eq.  51; 
Hendricks  v.  Robinson,  2  .Johns.  Ch. 
283;  Athey  v.  Knotts,  6  B.  Mon.  24, 
where  a  court  of  equity  afforded  re- 
lief by  following  the  money  which 
had  been  expended  by  an  insolvent 


in  improvements  upon  the  property 
of  another.  See,  also,  Barto's  Ap- 
peal, 55  Pa.  386;  People's  Nat.  Bank 
of  Pittsburg  V.  Loeffert,  184  Id.  172; 
New  South  Building  &  Loan  Assn. 
?'.  Reed,  96  Va.  345;  National  Val- 
ley Bank  r.  Hancock,  100  Id.  lOl; 
Vandervort  v.  Fouse,  52  W.  Va.  214. 
<  Botsford  V.  Beers,  11  Conn.  370; 
Weed  V.  Pierce,  9  Cow.  722;  Fletcher 
V.  Tuttle,  97  Me.  491;  1  Am.  Lead. 
Cas.  59;  post,  Part  III.,  Chap.  VI.  A 
court  of  equity  has  jurisdiction  to  set 
aside  a  transfer  from  husband  to  wife 
on  the  ground  of  fraud  on  creditors — 
the  remedy  at  law  not  being  ade- 
quate. Skilton  r.  Tiffin,  6  How.  163; 
Pratt  V.  Carter,  6  N.  B.  R.  139; 
Massey  v.  Allen,  7  Id.  401;  Spackel- 
ford  V.  Collin,  6  Bush,  149;  Lee  v. 
Hollister,  5  Fed.  Rep.  756. 


CH.  II.] 


FRAUD. 


383 


first,  ivhat  convr'yances  are  voidable;  and,  second,  as  against 
ivhom  are  they  voidable. 

And,  in  the  first  place,  it  is  the  fraudulent  intent  which  invali- 
dates the  conveyance.^  A  transfer  may  be  made  for  a  valuable 
consideration — nay,  the  consideration  may  be  a  full  and  ade- 
quate one;  but  yet  if  it  is  affected  with  a  fraudulent  intent  it 
will,  nevertheless,  be  void.^ 

This  fraudulent  intent  may  be  either  express^  or  implied; 
and  the  implication  of  fraud  may  arise  in  various  ways,  as  (for 
instance)  by  the  creditor  showing  that  the  grantor  was  in- 
debted to  the  extent  of  insolvency,  or  even  that  he  was  largely 
indebted  at  the   time  of  making  the   conveyance ;  **   or  where 


1  Werner  v.  Zierfuss,  162  Pa.  360. 
In  this  connection,  the  general  rule 
that  a  man  is  presumed  to  intend  the 
necessary  consequences  of  his  acts,  is 
to  be  remembered.  Whatever,  there- 
fore, the  motive  may  be,  if  the  result 
is  to  hinder  creditors,  the  conveyance 
will  be  presumed  to  have  been  made 
with  a  fraudulent  intent.  McKeown 
r.  Allen,  37  Fla.  490;  Andrews  )'.  Par- 
tec,  70  Miss.  SO;  Bank  r.  Trebein  Co., 
59  Ohio,  316;  Robinson  v.  McKenna, 
21  R.  I.  117.  .\s  to  subsequent  credi- 
tors, however,  the  fraudulent  intent 
must  be  affirmatively  proved.  It 
will  not  be  presumed.  Barkworth  r. 
Palmer,  118  Mich.  50;  Cole  v.  Brown, 
114  Mich.  396;  Bouquet  v.  Hcymaii, 
50  N.  J.  Eq.  114.  A  conveyance  of 
property  by  husband  to  wife,  duly 
recorded,  and  not  made  with  intent 
to  defraud  subsequent  creditors, 
could  not  be  complained  of  by  tli"in, 
irrespective  of  intent  as  to  exist 
ing  creditors.  Aldous  v.  Olverson,  17 
S.  D.  190.  And  if  the  conveyance 
cannot  possibly  injure  creditors  of  a 
certain  class,  c.  g.,  those  having  prior 
liens  which  are  not  affected  by  the 
conveyance,  no  fraudulent  intent  as 
to  them  can  be  presumed.  Fidler  r. 
John,  178  Pa.  112. 

2Twyne's  Case,  3  Coke,  212;  1  Sm. 
Lead.  Cas.  33;  Holmes  v.  Penny,  3  K. 


&  J.  99;  Chandler  v.  Von  Roeder,  24 
How'.  224;  Zerbe  v.  Miller,  1(5  Pa.  497; 
Gragg  V.  Martin.  12  Allen,  498;  Root 
r.  Reynolds,  32  Vt.  139;  PTilliam  v. 
Newberry,  41  Ala.  168;  Plorence  Sew- 
ing Machine  Co.  v.  Ziegler,  58  Id. 
221;  Rogers  v.  Evans,  3  Ind.  574; 
Gable  v.  Columbus  Cigar  Co.,  140  Ind. 
563;  Poague  v.  Boyce,  6  J.  J.  Marsh. 
70;  Trotter  v.  Watson,  6  Humph.  509; 
Clark  )'.  Harper,  215  111.  24;  Sale- 
monson  v.  Thompson,  13  N.  D.  182; 
Mosely  r.  Gainer,  10  Tex.  393;  Hay- 
maker's Appeal,  53  Pa.  306;  Cioodalo 
V.  Wheeler,  41  Oreg.  190;  Bump  on 
Fraud.  Convey.  197;  Kerr  on  Fraud 
and  Mistake,  200;  (Bump's  ed.) 
Bea.sley  ;•.  Bray,  98  N.  C.  266.  The 
intent  must  be  legal  not  moral.  Logan 
r.  Logan,  22  Fla.  561.  Though  there 
be  full  consideration  and  no  fraudu- 
lent intent,  yet  if  a  secret  trust  be 
reserved  the  tran.siction  is  con- 
structively fraudulent.  Beidler  v. 
Crane,  135  111.  92.  See,  in  this  con- 
nection, Carr  r.  Briggs,  156  Ma.ss.  7^. 

3Spirett  V.  Willows,  3  De  G.,  J.  & 
Sm.  393. 

4  Taylor  r.  Jones,  2  Atlc.  600; 
Crossley  v.  Elworthy,  L.  R.  12  Eq. 
158;  Cornish  r.  Clark,  14  Id.  184. 
See,  also.  Freeman  r.  Pope,  L.  I!.  5 
Ch.  538;  Smith  r.  Cherrill,  1,.  R.  4 
Eq.  390,  396;  note  to  Ellison  v    Elli- 


384 


FRAUD. 


[part  II. 


one  conveys  all  his  property  in   consideration  of  future  sup- 
port.^ 

The  most  usual  evidence  of  a  fraudulent  intent  is  found  in 
the  absence  of  consideration.  Hence  it  has  been  laid  down  as  a 
rule  that  a  voluntary  alienation  of  property  is,  in  general,  void 
as  against  creditors.^  This  rule  corresponds  with  the  proviso  in 
the  statute  of  Elizabeth.  The  statute  declares  that  all  convey- 
ances made  with  an  intent  to  hinder,  delay,  and  defraud  cred- 
itors, shall  be  void  as  against  the  parties  intended  to  be  injured. 
It  then  goes  on,  in  a  subsequent  section,  to  provide  that  this  rule 
shall  not  apply  to  bo7ia  fide  transfers  for  a  good  consideration. 
Two  requisites,  therefore,  are  necessary  to  the  validity  of  a  trans- 
X'r;  first  it  nuist  be  made  in  good  faith;  and,  secondly,  it  must 
1)0  for  good  consideration.^  The  consideration  will  not  avail 
if  bona  fides  be  wanting."*  The  good  faith  will  not  save  the  con- 
veyance if  it  be  made  without  consideration.  The  term  good 
consideration  has  been  construed  to  mean  a  valuable  consider- 
ation. A  good  consideration,  in  one  sense  of  the  term,  embraces 
not  only  those  which  are  founded  on  value,  but  those  also  which 
are  founded  on  the  duties,  and  obligations,  and  feelings  of  re- 
lationship, and  are  therefore  termed  meritorious,  as  contradis- 
tinguished from  valuable.  A  good  consideration,  however,  as 
used  in  the  statute,  means  one  founded  on  value.  A  transfer 
to  a  wife  or  child,  however  meritorious  it  may  be,  is  not  valid  as 
against  creditors ;  ^  but  the  inchoate  interest  of  a  wife  in  the 
lands  of  her  husband  constitutes  (it  has  been  held)  a  valuable 
consideration  for  a  conveyance  by  him  of  other  property.^ 


son,  1  Lead.  Cas.  Eq.  284  (4th  Eng. 
ed.). 

1  Mallow  r.  Walker,  115  la.  238. 
See,  also.  Spear  v.  Spear,  'M  Me.  498; 
Michigan  Trust  Co.  v.  Comstock,  130 
Mich.  572. 

2  See  notes  to  Sexton  r.  Wheaton,  1 
Am.  Lead.  Cas.  37;  2  Kent's  Com.  441. 

3  Clements  v.  Moore,  6  Wall.  312; 
Hiller  r.  Jones,  66  Miss.  6.36.  The 
grantee  must  act  without  notice  of 
the  intent.  Weber  v.  Ilothchild,  15 
Oreg.  385;  .Vultman  &  Co.  v.  Weir,  34 
111.  App.  615;  Beasley  i\  Bray,  98 
N.  C.  266.  See  Van  Raalte  r.  Harring- 
ton, 101  Mo.  602,  and  the  criticism  of 


that  case  in  Bank  v.  Tobacco  Co.,  155 
Mo.  602,  and  Vickers  v.  Buck,  60 
Kan.  598. 

*  Brittain  v.  Lohr,  12  U.  S.  App. 
148;  Ogg  V.  Schultz,  61  Neb.  221. 

5  Bump  on  Fraudulent  Convey- 
ances, 248;  In  re  Cameron  &  Wells, 
37  Ch.  D.  32.  The  rule  is  otherwise 
as  to  children  of  the  wife  by  a  former 
marriage.  Newstead  v.  Searles,  9 
App.  Cas.  320,  n.  See  Att.-Gen.  v. 
Jacobs  Smith  [1895]  2  Q.  B.  341.  As 
to  presumption  in  such  ca.ses,  see  Mil- 
ler r.  Gillispie,  54  W.  Va.  450;  Helm 
i\  Brewster,  42  Colo.  25. 

6  Baldwin  v.  Heil,  155  Ind.  682. 


CH.  11.]  FRAUD.  385 

244.  Moral  obligations  ;  consideration  of  marriage. 

The  consideration,  however,  although  it  must  be  valuable, 
need  not  be  founded  on  a  present  legal  obligation.  It  is  enough 
if  there  is  a  present  moral  obligation,  founded  on  an  antecedent 
legal  obligation.  Thus,  if  A.  be  indebted  to  B.,  but  the  indebted- 
ness is  barred  by  the  Statute  of  Limitations,  it  is  not  obligatory 
upon  A.  to  plead  the  statute.  He  may,  if  he  sees  fit,  pay  the 
debt,  or  transfer  property  in  satisfaction  thereof,  and  the  pay- 
ment or  transfer  will  be  good  as  against  his  creditors.  Upon  the 
same  principle  a  man  may  pay  a  debt  from  which  he  has  been 
released  by  the  operation  of  the  bankrupt  law,  and  the  property 
so  applied  cannot  be  followed  by  creditors.^ 

Moreover,  it  is  entirely  well  settled,  both  in  England  and 
America,  that  at  common  law  and  independently  of  any  statutory 
provisions,  ::uch  as  bankrupt  or  insolvent  laws,  a  debtor  in  failing 
circumstances  has  a  right  to  prefer  certain  creditors.  If,  as  must 
be  conceded,  he  has  a  right  to  pay  one  creditor  in  preference  to 
another,  even  where  he  is  aware  of  his  inability  to  pay  all  in  full, 
there  is  no  just  reason  why,  in  making  provision  for  all,  by  way 
of  assignment,  he  may  not  make  special  provision  for  some.^ 
But  an  intent  that  the  debtor,  l)y  such  preference,  shall  make  a 
secret  trust  for  himself,  will  render  the  preference  a  fraud. ^ 

A  transfer  in  consideration  of  marriage  is  a  transfer  for  a 
valuable  consideration;  and  if  a  settlement  is  made  after  mar- 
riage, in  pursuance  of  an  ante-nuptial  agreement,  it  will  be  up- 
held if  the  agreement  is  valid  and  binding.'*  But  a  settlement 
made  in  pursuance  of  an  ante-nuptial  parol  agreement  will  not, 
by  reason  of  the  Statute  of  Frauds,  be  valid .^ 

245.  Voluntary  transfers ;  conveyances  by  persons  in- 
debted. 

A  transfer  of  property  which  is  purely  voluntary  may,  under 

1  Bump  on  Fnuid.  Con.  24!),  250.  SncU's  Eq.  68.    See  Reade  r.  Living- 

2  Huntley  v.  Kingman,  152  U.  S.  ston,  3  Johns.  Ch.  489,  and  Bank  v. 
527,  and  see  p.  5:52  et  .seq.,  when;  t!ic  Head,  i:U  Mo.  55'^.  Wliether  it  is 
doctrine  is  stated  and  the  author-  necessary  that  some  particular  mar- 
ities  are  reviewed  by  Mr.  Justice  riage  should  be  in  contemplation, 
Brown.  see   Sterry   v.   Arden,    1    Johns.   Ch. 

3  Waples-PIatter    Co.    ?-.    Low,     10  261. 

U.  S.  App.  704;  Rubber  Mfg.  Co.  v.  5  Warden  r.  Jones,  2  De  G.  &  J.  76; 

Supply   Co.,    149   Mo.    538;    Ellis   v.  Manning  v.  Riley,  52  N.  J.  Eq.  39; 

Musselman,  61  Neb.  262.  Flory  v.  Ilouck,  186  Pa.  267;  Barnes 

<Kirk  r.  Clark,  Free,  in  Ch.  275;  v.  Black,  193  Id.  450;  Hill  on  Trua- 

25 


386 


FRAUD. 


[part  II. 


certain  circumstances,  be  sustained.  Any  one  may  make  a  gift, 
the  value  of  which  bears  but  an  insignificant  proportion  to  his 
estate.  If  his  remaining  property  is  ample  to  discharge  his 
debts  the  transaction  cannot  be  impeached.^ 

A  difference  of  opinion,  however,  has  existed  upon  this  point, 
and  the  question  becomes  much  more  complicated  if  debts  are 
subsequently  contracted  by  the  voluntary  grantor.  The  true 
rule  seems  to  be  that  the  gift  will  be  valid  if  the  "donor  has,  at 
the  time,  the  pecuniary  ability  to  withdraw  the  amount  of  the 
donation  from  his  estate  without  the  least  hazard  to  his  creditors, 
or  in  any  material  degree  lessening  their  prospects  for  payment."^ 

But  a  fraudulent  intent  will  vitiate  a  settlement,  and  may  be 
implied  from  many  circumstances.  Thus,  if  the  settlor  is  largely 
indebted  at  the  time  of  making  the  settlement,^  or  insolvent,^  or 
unable  to  pay  his  debts  after  making  it,^  or  puts  everything  into 
the  settlement,  and  thus  renders  himself  insolvent,^  the  settle- 
ment cannot  stand  7 

A  voluntary  conveyance  will  be  good  as  against  subsequent 
creditors,  unless  it  is  made  with  the  fraudulent  intent  of  defeat- 
ing their  claims.*  Whether  such  a  fraudulent  intent  does  or 
does  not  exist  is  a  question  of  fact,  which  is  to  be  determined 
by  evidence.  The  mere  circumstance  that  the  alienation  is 
voluntary  is  not,  of  itself,  a  sufficient  indication  of  fraud .^    The 


tees,  89,  and  notes  (4th  Am.  ed.).  See, 
however.  In  re  Holland  [1902],  2  Ch. 
360,  376. 

1  Hopkirk  v.  Randolph,  2  Brock. 
132;  2  Kent's  Com.  411,  notes; 
Wood  V.  Potts,  140  Ala.  425.  Under 
§  2156  of  Code  of  Alabama  a  volun- 
tary conveyance  is  void  as  to  exist- 
ing creditors  of  the  grantor  whatever 
may  have  been  his  financial  circum- 
stances or  his  intent  in  making  the 
conveyance. 

2  See  Jenkyn  v.  Vaughan,  3  Drew. 
425;  Kent  v.  Riley,  L.  R.  14  Eq.  190; 
Snell's  Eq.  64;  Bump  on  Fraud. 
Convey.  291. 

3  Thompson  v.  Webster,  4  Drew. 
628;  4  De  G.  &  J.  600;  7  Jur.  (n.  s.) 
(House  of  Lords)  531. 

*  Lehman  et  al.  v.  Gunn  et  al.,  124 
Ala.  213. 


5  Freeman  v.  Pope,  L.  R.  5  Ch.  538, 
541. 

6  Smith  V.  Cherrill,  L.  R.  4  Eq.  390, 
396. 

7  Notes  to  Ellison  v.  Ellison,  1 
Lead.  Cas.  Eq.  285. 

«  Bouquet  v.  Heyman,  50  N.  J.  Eq. 
114;  Williams  i'.  Kemper,  99  Minn. 
301;  Donoghue  v.  Shull,  85  Miss.  404; 
Ayers  v.  Wolcott,  66  Neb.  712. 

9  Se.xton  I'.  Wheaton,  8  Wheat.  229; 
Mattingly  v.  Nye,  8  Wall.  370;  Town- 
send  V.  Westacott,  2  Beav.  340; 
Salmon  v.  Bennett,  1  Conn.  525; 
Jackson  v.  Town,  4  Cow.  599;  4 
Kent's  Com.  442;  1  Am.  Lead.  Cas. 
37,  40.  A  voluntary  conveyance  is 
not  void  as  to  future  creditors  un- 
less there  is  some  evidence  to  indi- 
cate that  the  grantor  intended  to 
withdraw    his    property    from    such 


CH.  II.] 


FRAUD. 


387 


donor  must  not,  however,  be  insolvent,  or  be  about  to  embark 
in  a  hazardous  business.^  Nor  would  the  mere  fact  that  the 
settlor  retains  enough  to  pay  his  existing  debts,  and  actually 
pays  them,  be  sufficient  to  render  the  settlement  valid,  if  the 
settlement  were  really  made  with  the  intent  to  evade  the  statute.^ 
If  the  settlement  is  actually  fraudulent,  it  is  bad  as  against  subse- 
quent, as  well  as  against  existing,  creditors.^ 

It  is  not,  however,  a  fraud  upon  creditors  for  a  person  en- 
gaged in  business  to  form  a  corporation  or  limited  liability  com- 
pany, of  which  the  capital  may  be  composed  of  the  assets  in  the 
business,  and  of  which  the  shares  may  be  held  almost  entirely 
by  one  man,  provided,  of  course,  no  statutory  provisions  are 
violated  and  all  the  statutory  requirements  are  observed. 
These  companies  have  been  sometimes  styled  "one  man  com- 
panies," which  is,  said  Lord  Macnaughten,  in  Salomon  v.  Salo- 
mon, "a  taking  nickname,  but  does  not  help  one  much  in  the 
way  of  argument."  For  a  person  thus  in  good  faith  to  take  ad- 
vantage of  the  limited-liability  statutes  is  not  a  fraud;  for  it  is 
the  very  policy  of  such  laws  that  this  should  be  done.^ 


creditors.  Best  v.  Smith,  193  Pa. 
89.  The  mere  existence  of  present 
indebtedness  is  not  sufficient  to 
warrant  the  inference  that  the  con- 
veyance was  designed  to  defraud 
future  creditors.  Snyder  v.  Christ, 
39  Pa.  499;  Harlan  v.  MaglaughHn, 
90  Id.  297;  Buckley  v.  Duff,  114  Id. 
596;  McCullough  v.  Willey,  192  Id. 
176;  Gentry  v.  Lanneau,  54  S.  C. 
514.  See,  also,  Todd  v.  Nelson,  109 
N.  Y.  316. 

1  To  render  the  conveyance  fraud- 
ulent the  grantor  must  actually  enter 
into  the  hazardous  business;  for  if  it 
is  merely  an  intention  not  carried 
out,  the  conveyance  cannot  be  con- 
sidered void.  Williams  v.  Davis,  G9 
Pa.  21.  An  alienation  to  allow  him 
to  commit  a  tort  with  impunity  is 
void  against  one  who  afterwards  re- 
covers a  judgment  for  the  tort.  Boid 
V.  Dean,  48  N.J.  Eq.  193. 

2  Holmes  v.  Penney,  3  K.  &  J.  90; 
1  Am.  Lead.  Cas.  40.  See,  also, 
Thomson  v.  Dougherty,  12  S.  &  R. 


448;  Snyder  v.  Christ,  39  Pa.  506; 
Ammon's  Appeal,  63  Id.  284;  Monroe 
V.  Smith,  79  Id.  459;  Lillard  v.  Mc- 
Gee,  4  Bibb,  166. 

a  Marshall  v.  Roll,  139  Pa.  399; 
Jones  V.  Light,  86  Me.  437;  McFad- 
din  V.  McFaddin,  134  Ala.  337. 

Where  a  conveyance  is  made  by 
an  insolvent  debtor  if  a  near  relation- 
ship exists  between  the  grantor  and 
grantee  more  vigilant  and  jealous 
scrutiny  will  be  excited  and  clearer 
and  more  convincing  proof  will  be 
required  than  when  the  transaction  is 
between  strangers.  Clark  v.  Harper, 
215  111.  24. 

•*  Salomon  v.  Salomon  [1897],  A.  C. 
22-53;  In  re  Baglan  Hall  Colliery 
Co.,  L.  R.  5  Ch.  346;  Kingman  v. 
Mowry,  182  111.  256;  Shumaker  v. 
Davidson,  116  la.  569,  and  Spaulding 
V.  Steel,  126  Mich.  253.  See  Bank  v. 
Trebein  C^o.,  59  Ohio,  316,  where  the 
circumstances  were  hold  to  make  the 
formation  of  a  corporation  a  fraud; 
also,  Goodale  v.  Wheeler,  41  Oreg.  190. 


388  FRAUD.  [part  II. 

246.  Conveyances  of  property  which  could  not  be  reached 
by  execution. 

It  was  decided  in  England  that  a  voluntary  transfer  of  prop- 
erty, which  could  not  be  reached  by  execution,  was  not  fraud- 
ulent as  against  creditors;  and  although  the  decisions  upon  this 
])oint  have  been  conflicting,  the  doctrine  must  be  considered 
in  England  to  be  well  established.'  Nevertheless,  it  was  there 
held  that  while  choses  in  action  did  not  fall  under  the  statute 
of  Elizabeth,  and  therefore  creditors  could  not  be  said  to  be 
l)rejudiced  by  their  assignment,  inasmuch  as  they  were  not 
Yuihle  to  execution,  yet  in  cases  falling  under  the  Insolvent 
Debtors'  Acts  the  rule  was  different,  because  under  these  acts 
all  the  debtor's  property  became  applicable  to  the  payment  of 
his  debts.^  And  choses  in  action,  since  1  and  2  Vict.,  c.  100,  have 
become  available  for  the  payment  of  debts,  and  are  therefore 
within  the  statute.^  In  the  United  States  the  tendency  is  to 
consider  the  language  of  the  statute  as  comprehending  all  kinds 
of  personal  property,  including  choses  in  action;  ^  and,  more- 
over, there  are,  in  many  states,  legislative  enactments  whereby 
choses  in  action  may  be  reached  by  execution.^ 

The  English  doctrine,  therefore,  can  scarcely  be  said  to  exist 
throughout  the  United  States.^  Besides,  in  many  of  the  states, 
property  of  an  equitable  character  and  property  conveyed  in 
fraud  of  creditors,  may  be  reached  by  a  creditors'  bill;  a  remedy 
which  may  be  considered  as  having  originated  in  the  case  of 
Spader  v.  Davis,^  in  the  year  1821,  and  which  has  been  very  ex- 
tensively employed  since  that  time.  These  bills  will  be  noticed 
in  their  ])ro])er  place  under  the  head  of  Ecjuitable  Remedies.® 

247.  (lifts  from  husband  to  wife. 

The  extent  to  which  a  man  has  the  power  to  make  a  volun- 
tary dis]X)sition  of  his  property  is  frequently  called  into  ques- 
tion in  the  cases  of  settlements  made  by  a  husband  upon  his 
wife.  There  are  many  decisions  to  the  effect  that  a  gift  from 
a  husband  to  a  wife,  to  be  sustained  even  as  against  subsequent 

1  Story's     Eq.     Jurisp.     §361;     2  5  See  4  Kent's  Com.  443. 

Kent's  Com.  442.  6  See,    however,   Sims  v.    Phillips, 

2  See  Norcutt  v.  Dodd,  1  Cr.  &  Ph.  54  Ark.  193;  Shawano  Co.  Bank  v. 
100.  Koeppen,    78    Wis.    533;    Taylor    v. 

3  Stokoe  ('.  Cowan.  29  Beav.  037.  Duesterberg,  109  Ind.  165. 

4  Elliott's  Ex'rs'  Appeal,  50  Pa.  82;  7  2  Johns.  Ch.  280.  See  4  Kent's 
Bayard    v.    Hoffman,    4    Johns.    Ch.  Com.  443. 

450.  8  See  post,  Part  III.,  Chap.  VI. 


C'H.  II.] 


FRAUD. 


389 


creditors,  must  be  reasonable — that  is,  it  must  bear  a  just  and 
fair  proportion  to  the  actual  amount  of  his  property,  and  to 
his  condition  and  prospects  in  Hfe.^  A  man  cannot  denude 
himself  of  all  or  a  greater  part  of  his  means  for  the  purpose  of 
making  a  gift  to  his  wife.  To  allow  him  to  do  so  would  be  to 
open  a  wide  door  to  fraud,  for  by  putting  his  property  in  his 
wife's  name,  he  might  practically  secure  the  means  of  support 
for  himself,  and  at  the  same  time  obtain  for  his  property  a  com- 
plete immunity  from  his  liabihties.  What  the  amount  of  this 
reasonable  provision  should  be,  seems  to  be  a  matter  of  some 
little  doubt.  It  may  be  possible  that  the  doctrine  itself,  as  to  the 
reasonableness  of  the  provision,  would  apply  only  to  those  cases 
in  which  a  common-law  conveyance  between  husband  and  wife 
is  attempted  to  be  used,  and  not  whei:e  a  gift  is  made  through  a 
deed  operating  under  the  Statute  of  Uses.  A  gift  directly  from  a 
husband  to  a  wife  is  void  at  law.  It  is  sustained  in  equity  through 
the  medium  of  a  trust — a  chancellor  regarding  the  conveyance 
as  a  declaration  of  trust,  and  treating  the  husband  as  a  trustee. 
But  a  court  of  equity  will  only  lend  its  assistance  to  a  married 
woman,  under  such  circumstances,  when  the  transaction  operates 
as  a  reasonable  provision  for  her;  and  the  aid  of  the  chancellor, 
being  a  matter  of  grace,  will  not  be  extended  for  the  purpose  of 
giving  all  a  man's  property  to  his  wife,  to  the  detriment  of  his 
creditors.  But  a  conveyance  to  a  wife  through  the  medium  of  a 
third  party — as  if  A.  and  his  wife  conveyed  to  B.,  who  then  re- 
conveys  to  A.'s  wife — is  good  at  law,  and  needs  no  equitable 
interposition  to  support  it.  It  would  seem,  therefore,  that, 
apart  from  actual  fraud,  such  a  method  of  settling  property  upon 
the  wife  ought  to  stand  upon  the  same  footing  as  gifts  to  a 
stranger. 

248.  Parties  by  whom   fraudulent  conveyauces  may  be 
avoided. 

It  must  be  remembered  that  conveyances  in  fraud  of  cred- 


1  Notes  to  Sexton  v.  Wheaton,  I 
Am.  Lead.  .Cas.  57.  See,  also, 
Spirett  V.  Willows,  34  L.  J.  Ch.  365; 
Wickes  V.  Clark,  8  Paige  Ch.  151; 
Benedict  v.  Montgomery,  7  W.  &  S. 
238;  Coates  v.  Gerlach,  44  Pa.  43; 
Mullen  V.  Wilson,  Id.  413;  Ammon's 
Appeal,  63  Id.  284;  Thompson  v. 
Thompson,  82  Id.  378;  Stickney  v. 


Borman,  2  Id.  67;  Penna.  Salt  Co.  v. 
Neel,  54  Id.  9;  Morris  v.  Zeigler,  71 
Id.  450;  Mellon  v.  Mulvey,  23  N.  J. 
Eq.  198;  Trustees  v.  Bryson,  .34  S.  C. 
401 ;  Adams  v.  Edgerton,  48  Ark.  419; 
Hawkins  v.  Wills,  4  U.  S.  App.  274; 
Seekel  v.  Winch,  108  Iowa,  102; 
Welch  V.  Mann,  193  Mo.  304. 


390  FRAUD.  [part  II. 

itors  are  void  only  as  against  those  who  may  be  injured  thereby.' 
The  statute  avoids  conveyances  made  to  defraud  "creditors  and 
others,"  and  it  was,  therefore,  said  in  Twyne's  case,  that  "the 
act  doth  not  extend  only  to  creditors,  but  to  all  who  had  cause  of 
action,  suit,  penalty,  forfeiture,  etc."  Hence,  it  has  been  held 
that  a  person  entitled  to  a  penalty  under  the  Usury  Acts,  was 
within  the  class  of  persons  who  were  designed  to  be  protected 
by  the  statute  of  Elizabeth ; '  and  so,  also,  is  a  wife  suing  for 
divorce  and  alimony;^  but  not  where  she  is  suing  for  divorce 
alone,'*  or  a  wife  who  is  a  creditor.^  But  the  term  "others"  does 
not  include  every  one.  The  conveyance  may  be  perfectly  good 
as  against  the  party  executing  it,  and  as  against  every  other 
person  consenting  or  privy  to  it.^  The  fraudulent  grantor  him- 
self cannot  elect  to  set  the  conveyance  aside,  nor  enforce  a  secret 
trust  for  his  own  benefit.  His  lips  are  closed.  This,  indeed,  is  in 
obedience  to  the  general  principle  that  where  the  parties  to  a 
fraudulent  contract  have  fully  executed  it  themselves,  courts  of 
justice  will  not  interfere  to  unravel  their  doings;  but,  considering 
them  in  pari  delicto,  will  leave  them  bound  as  they  found  them. 
And  the  application  of  this  principle  to  the  case  of  conveyances 
in  fraud  of  creditors  is  unquestionable.'^    The  principle,  indeed,  is 

1  Notes  to  Sexton  v.  Wheaton,  1  *  Holland  v.  Holland,  121  Mich. 
Am.  Lead.  Cas.  45.    See,  particularly,       109. 

Chapiu  V.  Pease,  10  Conn.  69;  Burtch  &  Houseman  v.  Grossman,  177  Pa. 

V.  Elliott,   3  Ind.   99;   Bouslough  v.  453.     And   see   Newton   v.   Newton, 

Bouslough,  68  Pa.  495.    See,  also,  as  162  Mo.  173. 

to  the  further  proposition  that  pro-  ^  Robinson  v.  Macdonnell,  2  B.  & 

ceedings  to  avoid  a  fraudulent  trans-  A.  134;  Steel  v.  Brown,  1  Taunt.  381; 

fer  will  enure  to  the  benefit  only  of  Bessey  v.  Windham,  6  A.  &  E.  (n.  s.) 

those  who  institute  them,  not  to  the  166;  Barrow  v.  Barrow,  108  Ind.  345. 

advantage   of   other   creditors,   Fow-  '  Blystone  v.  Blystone,  51  Pa.  374; 

ler's  Appeal,  87  Pa.  455-456;  Shulze's  Bonesteel  v.  SuUivan,  104  Id.  9;  Wil- 

Appeal,  1  Id.  251;  Tomb's  Appeal,  9  Hams  v.  Clink,  90  Mich.  297;  Massi 

Id.   61.     The   fraudulent   grantee   is  v.  Lavine,   139  Mich.   140;  Lewis  v. 

treated  as  a  trustee,  and  must  answer  McGrath,     191     111.     401;     Bank    r. 

for  the  property.     Mason  v.  Pierron,  Adrian,  116  N.  Car.  537-543;  Flan- 

69  Wis.  585.  nery  v.  Coleman,  112  Ga.  648;  Polin- 

2  Heath  v.  Page,  63  Pa.  108  (see  v.  Williams,  55  W.  Va.  69;  Brady  r. 
this  case  also  for  a  general  discussion  Huber,  197  111.  291;  Pride  v.  Antlnnv, 
of  the  effect  of  the  statute);  Shontz  51  Ohio  St.  404;  Farrar  c.  Bernheim, 
V.  Brown,  27  Id.  131.  41  U.  S.  App.  172;  Kirby  v.  Raynes, 

3  Byrnes  v.  Volz,  53  Minn.  110;  138  .\la.  194;  Cochonour  v.  RatcHff, 
Rivera  v.  White,  94  Tex.  538,  and  223  111.  274;  Jones  v.  Jones,  20  S.  1). 
McFaddin  v.  McFaddin.  134  .\la.  :!37.  6;)2.     .\s  the  representative  of  cred- 


CH.  II.] 


FRAUD. 


391 


one  of  common  law,  which  makes  that  which  is  fraudulent,  in 
fact,  void;  but  whose  maxim  in  all  cases  of  confederate  fraud 
is,  "in  pari  delicto  melior  est  conditio  defendentis."  ^  Nor  will 
equity  interfere  on  behalf  of  a  volunteer,  claiming  under  the 
grantor.^ 

In  England  it  was  decided  that  if  a  debtor  made  a  fraudulent 
conveyance  of  his  land,  and  then  died,  the  only  persons  who  had  a 
standing  in  court  to  set  the  conveyance  aside  were  lien  creditors. 
Ordinary  bond  or  simple  contract  creditors,  whose  claims  had  not 
been  reduced  to  judgment,  could  not  attack  the  transaction.  But 
in  America  fraudulent  dispositions  of  property  by  a  debtor  during 
his  lifetime  can  be  impeached  after  his  death  by  any  of  his  cred- 
itors. This  is  on  the  ground  that  property  of  all  kinds  in  this 
country  is  deemed  assets  for  the  payment  of  debts. ^ 

249.  Secret  agreements  touching  composition  deeds. 

Another  class  of  cases  of  fraud  upon  creditors,  is  where  secret 
advantages  are  obtained  by  some  creditors,  at  the  expense  of 
others,  who  are  induced  to  sign  composition  deeds,  of  which 
the  supposed  basis  is  equality.  Such  secret  agreements  are  mani- 
festly fraudulent,  and  cannot  stand  the  test  of  the  investigation 


itors,  a  trustee  in  bankruptcy,  like  a 
trustee  in  insolvency,  may  avoid 
conveyances  and  assignments  which, 
though  valid  against  the  bankrupt, 
are  fraudulent  as  against  his  cred- 
itors. Bunnell  v.  Bronson,  78  Conn. 
679.  Plaintiff  believed  himself  about 
to  be  wrongfully  sued  for  damages. 
To  discharge  such  a  suit  he,  after 
bringing  action  to  divide  the  land  in 
which  he  was  interested,  ordered  the 
commissioner  to  make  a  deed  with- 
out consideration  to  another.  Sub- 
sequently, plaintiff  informed  the 
grantee  in  the  deed  of  what  had  been 
done,  and  the  grantee  agreed  to  hold 
the  land  and  to  convey  to  plaintiff 
on  his  request.  Held  that  the  court 
would  not  aid  plaintiff  in  compelling 
a  reconveyance.  Carson  v.  Beliles, 
121  Ky.  294. 

'  But  a  party  may  sometimes  be 
able  to  call  an  associate  in  an  illegal 
transaction  to  account  for  the  profits 


which  have  been  made.  Brooks  v. 
Martin,  2  Wall.  78;  Sharp  v.  Taylor, 
2  Phil.  Ch.  801  (ante,  §  42);  McBlair 
);.  Gibbes,  17  How.  232;  Tenant  v. 
Elliot,  1  Bos.  &  P.  3;  Farmer  v.  Rus- 
sell, Id.  296;  Thomson  v.  Thomson,  7 
Yes.  473.  In  those  cases,  also,  in 
which  the  debtor  has  been  induced 
by  threats  or  improper  influence  of 
the  grantee  to  execute  the  fraudulent 
conveyance,  he  may  come  into  equity 
to  have  it  set  aside,  for  in  such  a  case 
he  is  not  in  pari  delicto.  See  Cook  v. 
Coyler's  Adm'r,  2  B.  Mon.  72;  Deatly 
V.  Murphy,  3  A.  K.  Marsh.  474; 
Harper  v.  Harper,  85  Ky.  160;  Brant 
V.  Brant,  115  Iowa,  701;  Stockwell  v. 
Stockwell,  72  N.  H.  69. 

2  See  Dolphin  v.  Aylward,  L.  R.  4 
H.  L.  486.  An  assignee  for  the  bene- 
fit of  creditors  is  not  a  purchaser 
for  value.  Spackman  v.  Ott,  65  Pa. 
135. 

3  Story's  Eq.  Jurisp.  §§  375,  376. 


392 


FRAUD. 


[part  II. 


of  a  Court  of  Chancery;  ^  or,  in  modern  times,  of  a  court  of  law.- 
But  where  nothing  is  gained  at  the  expense  of  other  creditors  and 
no  injury  is  done  to  them,  an  independent  advantage  secured  by 
one  creditor  has  been  sustained.'' 

260.  Fniiul  upon  snbse(iiieiit  purchasers;  Statute  27  Eliz., 
c.  4. 

Akin  to  the  subject  of  fraud  which  affects  creditors,  is  that 
of  fraud  against  subsequent  purchasers.  The  Statute  of  27  Ehz., 
c.  4,  made  perpetual  by  Statute  39  Ehz.,  c.  18,  §  31,  enacts  that 
every  conveyance,  grant,  charge,  lease,  limitation  of  use  of,  in 
or  out  of  any  lands,  tenements,  or  other  hereditaments  whatso- 
ever, for  the  intent  and  purpose  to  defraud  and  deceive  such 
persons  as  shall  i)urchase  the  said  lands,  shall  be  deemed,  only 
against  such  persons  who  shall  so  ])iu'chase  for  money  or  any 
good  (;onsideration  the  said  lands,  to  be  wholly  void,  frustrate 
and  of  none  effect. ■* 

Even  l)efore  the  act  purchasei's  were  not  without  remedy  in 
such  cases  in  a  court  of  equity ;  but  the  statute  has  rendered  their 
rights  precise,  antl  their  remedy  more  extended.^ 

251.  Difference  between  the  English  and  American  rules. 

There  is  an  important  difference  between  the  English  and 
American  construction  of  this  statute.  In  England  it  is  held 
that  a  voluntary  conveyance  is  void  as  against  a  subsequent 
]jurchaser,  even  although  he  may  have  notice  of  the  same — the 
theory  being  that  as  tiie  voluntary  conveyance^  is  nmdered  void 
by  the  statute,  no  subseciuenl  })Ui'('hasei'  is  bound  to  regard  it." 
In   the   Ihiited  States,  however,  the  rule  is  different;    and  a 


1  Jackman  v.  Mitchell,  13  Ves.  581; 
Wood  V.  Barker.  L.  R.  1  Eq.  139; 
.Smith  r.  Stone,  4  G.  &  J.  310; 
Doughty  V.  Savage,  28  Conn.  4G; 
Case  V.  Gerrish,  1.^  Pick.  49;  Law- 
rence V.  Clark,  3(3  N.  Y.  158,  Hanover 
Nat.  Bank  ?'  Blake,  142  Id.  404; 
Loucheim  Brothers'  Appeal,  67  Pa 
49;  Patterson  ?•.  Boehni,  4  Id.  507; 
Mann  v.  Darlington,  15  Id  310; 
Kerr  on  Fraud  and  Mistake,  215 
(Bump's  ed.).  See  In  re  McHenry; 
McDermott  v.  Boyd  [1894],  3  Ch.  365, 
where  the  agreement  was  sustained. 


2  Kerr  on  Fraud  and  Mistake,  215. 
^  Lobdell   ?'.   State   Bank   of   Nau- 
voo,  180  111.  56. 

4  See  notes  to  Ellison  v.  Ellison,  1 
Lead.  Cas.  Eq.  283  (4th  Eng.  ed.). 

5  Kerr  on  Fraud  and  Mistake,  227; 
Perry-Herrick  v.  Attwood,  2  De  G. 
&  J.  21 ;  Brocklesby  v.  Temperance 
Perm.  Building  Soc.  [1895],  A.  C.  173; 
Lloyd.s  Bank,  Limited,  v.  Bullock 
[1896],  2  Ch.  198.  See  Davis  v.  Big- 
ler,  62  Pa.  247. 

»Doe  V.  James,  16  East,  212; 
Buckle  V.  Mitchell,  18  Ves.  111.    See, 


CH.  II.]  FRAUD.  393 

purchaser  who  has  notice  of  a  prior  voluntary  grant  will  take 
subject  to  the  rights  of  the  voluntary  grantee.^  But  the  rule 
u})on  this  subject  is  not  uniform  throughout  the  United  States. - 

It  is  essential  to  the  operation  of  the  statute  that  both  con- 
veyances should  be  made  by  the  same  person.  An  heir  or 
devisee  cannot,  by  a  conveyance  for  value,  defeat  a  voluntary 
settlement  made  by  his  ancestor  or  testator;  and  if  the  voluntary 
grantee  has  conveyed  for  value,  his  ahenee  can  hold  as  against 
a  subsequent  purchaser  from  the  original  grantor.^ 

A  mortgagee  is  a  purchaser  within  the  statute."*  It  need 
hardly  be  added,  that  as  between  the  parties  to  the  transaction 
the  voluntary  conveyance  will  be  good. 

252.  Statute  not  applicable  to  personal  chattels. 

The  Statute  of  27  Elizabeth,  c.  4,  does  not  apply  to  personal 
chattels;  but  as  it  is  in  affirmance  of  the  common  law,  it  would 
seem  that  its  principles  ought  to  be  applied,  with  the  modifi- 
cations rendered  necessary  by  the  difference  in  the  subject- 
matters,  to  the  transfers  of  personal  property.^  The  posses- 
sion of  chattels  generally  follows  the  title;  indeed,  a  change  of 
possession  is,  in  general,  necessary  in  oixler  to  render  the  sale 
valid  as  against  the  creditors  of  the  vendor ;  ^  while  delivery  is 
essential  to  a  valid  gift.  A  man,  therefore,  can  rarely  be  de- 
ceived as  to  the  rights  of  the  donee  of  a  chattel;  while  he  may 
very  well  be  misled  as  to  the  rights  of  a  voluntary  alienee  of 
real  estate.  Hence,  the  donee  of  personal  property  ought  not, 
generally,  to  be  disturbed  in  his  possession  by  a  subsequent 

also,   Cathcart  v.   Robinson,    5   Pet.  2  gee  Sterry  v.  Arden,  1  Johns.  Ch. 

265,  279;  Hill  v.  The  Bishop  of  Ex-  201,  and  1  Am.  Lead.  Cas.  51. 

eter,   2  Taunt.  09;  notes  to  Sexton  •<  Kerr  on  Fraud  and  Mistake,  229. 

V.  Wheaton,  1  Am.  Lead.  Cas.  50,  51;  ■•  Lancaster  v.  Dolan,  1  Rawle,  2:51 ; 

notes  to  Ellison  v.  Ellison,   1   Lead.  Lewis   v.    Love's    Heirs,  2    B.   Mon. 

Cas.   Eq.   283   (4th   Eng.   ed.).      But  345;  Ledyard  r.  Butler,  9  Paige  Ch. 

this  rule  is  not  regarded  with  satis-  1.32;    Clapp   v.    Leatherbee,   18  Pick, 

faction   in   England,   and,   therefore,  131. 

any   consideration,    no   matter    how  ^  Hudnal  v.  Wilder,  4  McCord,  294; 

small  or  inadequate,  will  be  sufficient  though  see  Jones  r.  Croucher,  1  Sim. 

to  support  the  first  settlement.    Bay-  &  S.  315;  Bohn  v.  Headley,   7  Har. 

spooler.  Collins,  L.  R.  ()('h.  232,  2;«.  &  Johns.   257;  Sewall  v.  C.lidden,   1 

1  Lancaster  y.  Dolan,  1  Rawle,  231;  Judges  (Ala.),   52,  61;   1   Am.   Lead. 

Dougherty   v.    Jack,    5    Watts,    456;  Cas.  53. 

Mayor  y.  W'illiams,  6  Md.  242;  1  Am.  "  Twyne's  Case,   1  Sm.  Lead.  Cas. 

Lead.  Cas.  51;  Keeling  v.  Hoyt,  31  33. 
Neb.  453. 


394 


FRAUD. 


[part  II. 


purchaser,  because  it  is  the  latter's  own  folly  to  buy  that  of 
which  another  has  the  possession.  When,  however,  the  donee 
or  even  the  vendee  of  chattels  suffers  them  to  remain  in  the 
possession  of  the  former  owner,  and  the  latter  sells  them  again 
to  a  bona  fide  purchaser  without  notice,  the  title  of  such  pur- 
chaser cannot  be  impeached.' 

253.  Fraud  on  marital  rights ;  Strathnore  v.  Bowes. 

The  next  species  of  fraud  upon  third  parties  which  demands 
attention,  is  that  which  is  known  as  fraud  upon  marital  rights, 
w^hereby  the  expectation  by  a  man  of  an  interest  in  the  property 
of  his  intended  wife  is  defeated. 

The  leading  authority  upon  this  subject  is  Strathmore  v. 
Bowes,^  in  which  the  opinion  of  Lord  Thurlow  contains  a  clear 
statement  of  the  general  doctrine,  while  the  decision  itself  es- 
tablishes an  important  cjualification. 

The  doctrine  in  question  may  be  stated  to  be  that  if  a  woman, 
during  the  course  of  a  treaty  of  marriage,  makes  a  voluntary  ^ 
conveyance  of  any  part  of  her  property,  without  notice  to  her 
intended  husband,  such  conveyance  will  be  treated,  in  equity,^ 
as  fraudulent  and  void  as  against  him,  and  will  be  set  aside  by 
a  chancellor  on  the  husband's  application.^ 

The  plainest  case  of  fraud  of  this  kind  is,  of  course,  that  in 
w^hich  active  deception  takes  place.  If,  during  the  treaty  for 
marriage,  a  woman  expressly  holds  herself  out  to  her  intended 
husband  as  entitled  to  property  which  will  become  hers  uj)ou 
marriage,  and  then  makes  a  settlement  without  his  knowledge, 
she  is  guilty  of  actual  fraud,  and  the  settlement  cannot  stand." 


1  See  notes  to  Lickbarrow  v.  Mason, 
1  Smith's  Lead.  Cas.  1147. 

2  1  Lead.  Cas.  Eq.  405.  See,  also, 
Wilson  V.  Daniel,  13  B.  Mon.  351; 
Cheshire  v.  PajTie,  16  Id.  618;  Dun- 
can's Appeal,  43  Pa.  67;  Robinson  v. 
Buck,  71  Id.  392;  Freeman  v.  Hart- 
man,  45  111.  57;  Perry  on  Trusts, 
§  213;  Russell  v.  Sharp,  192  Mo.  270. 

3  The  rule  will  not  apply  to  a  con- 
veyance for  value.  See  Blnncliet  v. 
Foster,  2  Yes.  Sr.  264. 

*  The  conveyance  cannot  be  treated 
as  void  at  law.  Logan  r  Simmons,  1 
Dev.  &  Bat.  (Law)  13,  16;  Doe  v. 
Lewis.  11  C.  B.  1035.     At  all  events 


it  is  not  necessarily  fraudulent.  Doe 
V.  Lewis,  supra. 

5  See  Chambers  v.  Crabbe,  34  Beav. 
457;  Terry  v.  Hopkins,  1  Hill  Ch.  1; 
Waller  v.  Armistead,  2  Leigh,  11; 
Manes  v.  Durant,  2  Rich.  Eq.  404; 
McAfee  v.  Ferguson,  9  B.  Mon.  475; 
Williams  v.  Carle,  10  X.  J.  Eq.  543; 
Duncan's  Appeal,  43  Pa.  67;  Linker 
?•.  Smith,  4  Wash.  C.  C.  224;  Tucker 
)•.  Andrews,  13  Me.  124;  Ferebee  v. 
Pritchard,  112  N.  Car.  83. 

"  See  England  v.  Downs,  2  Beav. 
528;  Logan  v.  Simmons,  3  Ired.  Eq. 
487.  See,  also,  Kline  v.  Khne,  57 
Pa.  120. 


CH.  II.]  FRAUD.  395 

It  is  clear,  also,  that  the  same  rule  exists  if  there  is  a  suppression 
of  the  truth,  and  merely  a  concealment  of  the  settlement,  al- 
though there  may  be  no  active  representations  that  the  prop- 
erty is  to  be  subject  to  marital  I'ights.^ 

254.  Ignorance  of  the  husband  as  to  the  existence  of 
property  innnaterial. 

A  question,  however,  naturally  arises  here,  upon  which  there 
has  been  some  slight  difference  of  opinion.  Suppose  the  intended 
husband  is  entirely  ignorant  that  the  woman  is  possessed  of 
property,  and  therefore  marries  her  without  any  expectation 
that  he  wull  acquire  any  estate  by  her.  In  such  a  case  he  can- 
not be  said  to  be  disappointed  if  it  turns  out  that  there  has  been 
an  ante-nuptial  settlement,  and  can  he,  therefore,  under  these 
circumstances  be  heard  to  complain?  -This  question,  however, 
is  now  settled  in  favor  of  the  husband.  It  is  true  that  he  is  not 
deprived  of  anything  which  he  expected  to  get,  and  no  antici- 
pations of  his  are  therefore  defeated;  but,  nevertheless,  he  is 
deprived  of  his  legal  rights,  and  placed  in  a  position,  in  respect 
to  his  wife  and  her  property,  which  he  ought  not  to  occupy,  ex- 
cept with  his  full  knowledge  and  consent. - 

But  the  rule  under  consideration  does  not  apply  to  property 
of  the  wife  to  which  the  marital  rights  would  not  have  at- 
tached; as  where,  for  example,  the  woman  has  a  life  estate  to 
her  separate  use,  to  the  exclusion  of  any  future  husband,  with 
an  absolute  power  of  appohitment  by  deed  or  will,  and  exercises 
the  power  before  marriage,  by  the  execution  of  a  settlement  on 
herself.^ 

255.  Circnnistances  which  constitnte  fraud  on  marital 
rif^hts. 

It  was  said  above  that  a  disposition  of  her  property  by  a 
woman  about  to  marry  will  be  sustained  if  made  for  a  valuable 

'  England  v.  Downs,  2  Beav.  528.  v.  Simmons,  3  Ired.  Eq.  487.    Though 

See,   however,  Thomas  r.   WilHams,  see  St.  George  v.  Wake,  1  My.  &  K. 

Mos.   177;  De  Manneville  r.  Cromp-  022.     See,  also,  Downes  v.  Jennings, 

tun,   1   V.   &   B.   'A'A,   where  .silence,  .'52  Beav.  290;  Prideaux  v.  Lonsdale, 

under  the  circumstances,  was  held  to  1  De  G.,  J.  &  Sm.  43:5;  Leary  r.  King, 

be  no  fraud.  6  Del.  Ch.  108. 

2Goddard  v.  Snow,   1  Russ.  485;  3  Cole  v.  O'Neill,  3  Md.  Ch.  174. 

Taylor  i,.  Pugh,  1  Hare,  008;  Logan 


396 


FRAUD. 


[part  II. 


consideration.  The  consideration,  however,  must  l)e  valuable: 
for  the  true  rule  seems  to  be  (although  the  law  is  not,  perhaps, 
free  from  doubt)  that  a  settlement  made  upon  a  meritorious 
consideration — e.  g.,  for  the  benefit  of  the  children  of  a  former 
marriage — will  not  be  good  as  against  the  husband.^  The  settle- 
ment to  be  fraudulent  must  be  in  view  of  a  i)articular  marriage, 
and  it  will  be  so  only  in  respect  of  the  intended  husbantl,  who 
was  in  treaty  of  marriage  at  the  time  of  the  settlement. - 

A  settlement  by  a  woman  will  not  be  set  aside  if  the  intended 
husband  has  notice  of  it  at  any  time — no  matter  how  short  the 
interval  may  be — before  the  marriage.*''  Nor  does  the  circum- 
stance that  the  husband  is  a  minor  at  the  time  of  the  marriage 
make  any  difference.  He  will,  if  he  consents  to  the  arrange- 
ment, or  has  knowledge  of  it,  be  precluded  from  disputing  it 
after  he  attains  his  majority.'' 

If  the  husband,  after  the  marriage,  acquiesces  in  and  con- 
firms the  settlement,  he  cannot  afterwards  be  heard  to  dispute 
it.^ 

A  man  may,  by  his  conduct  before  marriage,  deprive  himself 
of  his  right  to  impeach  a  settlement  made  without  his  knowl- 
edge. Thus,  where  a  woman  was  seduced  by  her  intended  hus- 
band before  marriage,  and  afte inwards  made  a  disposition  of  the 
property  of  which  he  had  no  notice,  it  was,  nevertheless,  held 
that  under  the  circumstances  he  was  not  entitled  to  have  the 
settlement  set  aside.'* 

The  rule  which  forbids  a  dis])Osition  of  jJrojH'rty  by  a  woman, 
in  contem])lation  of  marriage,  lo  the  injuiy  of  the  rights  of  h<'r 
intended  husliand,  has  also  been  ai)plied  to  the  case  of  a  man 


1  Blanchet  r.  Foster,  2  Ves.  Sr.  264. 
Though  see  Green  v.  (Joodall,  1  Cold. 
404.  But  it  is  good  against  his  cred- 
itors. Newstead  r.  Searles,  9  App. 
Cas.  ;i20,  n.  See  .\tt.-CJen.  ?•.  Jacobs 
Smith  [1895],  2  Q.  B.  Ml. 

2  Strathmore  v.  Bowes,  ante,  p.  391. 
See  De  Mestre  v.  West  [1891],  App. 
Cas.  264.  If  a  conveyance  is  volun- 
tary and  without  consideration  and 
is  made  with  the  intention  to  de- 
fraud of  her  marital  rights  any  per- 
son whom  the  grantor  should  marry, 
it  makes  no  difference  that  he  had 
not   selected   any   particular   person 


as  his  wife,  since  the  fraudulent  in- 
tent need  not  be  tlirected  against  a 
particular  person.  Higgins  r.  Hig- 
gins,  219  111.  146. 

a  Terry  r.  Hopkins,  1  Hill  Ch.  1,  5; 
Cheshire  r.  Payne,  16  B.  Mon.  618; 
St.  George  v.  Wake,  1  My.  &  K.  610 

4  Slocombe  v.  Glubb,  2  Bro.  C.  C. 
545. 

5  England  v.  Downs,  2  Beav.  528;  1 
Lead.  Cas.  Eq.  421.  But  see  Logan 
V.  Simmons,  3  Ired.  Eq.  487;  Manes 
V.  Durant,  2  Rich.  Eq.  404. 

6  Taylor  v.  Pugh,  1  Hare,  608. 


CH.  II.] 


FRAUD. 


397 


conveying  his  i3ropei'ty  away  in   fi'aiid  of  an  intended  wife;* 
and  to  a  release  of  dower  by  her.- 

A  husband  can  file  a  bill  during  coverture  to  determine  the 
question  whether  property  conveyed  by  him  to  his  wife,  through 
the  alleged  fraud  of  the  latter  before  marriag(\  is  the  wife's 
s(>]:)arat'e  property  or  belongs  to  the  husband  and  should  be 
restored  to  him.^ 

256.  Fraud  on  powers  ;  Aleyn  v.  Belchier. 
Another  class  of  frauds  upon  third  parties  comprises  those 
cases  in  which  there  is  a  fraudulent  exercise  of  a  power. 

A  power,  in  the  sense  it  is  here  used,  is  an  authority  enabling 


1  Smith  7'.  Smith,  2  Halst.  Ch.  515; 
Petty  V.  Petty,  4  B.  Mon.  215;  Simp- 
son V.  Simpson,  94  Ky.  586;  Graham 
V.  Graham,  143  N.  Y.  573;  Brooks  v. 
McKeekin,  37  S.  Car.  285;  Spurlock  v. 
Brown,  91  Tenn.  241 ;  Hach  v.  RoUin-s, 
158  Mo.  182;  Brinkley  u.  Brinkley, 
128  N.  C.  503;  Bookout  v.  Bookout, 
150  Ind.  63;  Ward  v.  Ward,  63  Ohio, 
125;  Rice  v.  Waddill,  168  Mo.  99; 
Daniher  i'.  Daniher,  201  111.  489. 
See,  also,  Khne  v.  Kline,  57  Pa.  120; 
Campbell's  Appeal,  80  Id.  309;  Baird 
i\  Stearne,  15  Phil.  339,  Fisher  c. 
Koontz,  110  Iowa,  498;  Collins  v. 
Collins,  98  Md.  473;  Goff  v.  Goff,  (>() 
W.  Va.  9.  A  wife  cannot  complain 
where  the  husband  heUl  the  land  as 
a  trustee  for  his  sons.  Wilson  v. 
Wilson,  32  Utah,  169. 

A  man  about  to  be  married  may 
dispose  of  his  estate  as  he  pleases, 
provided  it  is  done  with  proper  mo- 
tives, and  without  intention  to  de- 
fraud his  intended  wife.  Such  a 
conveyance,  whatever  may  be  the 
circumstances,  even  though  madt; 
the  moment  before  marriage,  is  prima 
focie  good,  and  becomes  bad  only 
upon  the  imputation  of  fniud.  M- 
though  the  settlenicnl  may  Ite  vol- 
untary and  not  disclosed  to  the  in- 
tended wife  it  is  not,  therefore, 
necessa>rily  fraudulent.  The  courts 
will  consider  any  facts  which  tend  to 


show  that  no  fraud  was  intended. 
In  the  case  in  judgment  there  was  no 
secrecy  about  the  execution  of  the 
deed,  and  the  evidence  fails  to  dis- 
close any  fraudulent  purpose  on  the 
part  of  the  grantor.  Jenkins  v. 
Rhodes,  106  Va.  564. 

A  presumption  of  fraudulent  in- 
tent to  deprive  the  wife  of  her  mari- 
tal rights  which  she  would  otherwise 
acquire,  arises  from  a  secret  con- 
veyance by  the -husband  just  prior 
to  the  marriage,  even  though  there 
was  no  actual  misrepresentation,  and 
the  conveyance  was  to  his  children 
by  a  former  marriage.  Wallace  v. 
Wallace,  137  la.  169. 

2  Taylor  v.  Taylor,  144  III.  436. 
See,  also.  Smith  v.  Smith,  22  Colo. 
480;  Hummel's  Appeal,  161  Pa.  215; 
Stroup  V.  Stroup,  140  Ind.  179; 
Barker  v.  Barker,  126  Ala.  503; 
Russell  V.  Russell,  60  N.  J.  Eq.  282 
Where  the  provision  made  for  a  wife 
in  an  ante-nuptial  agreement  is 
grossly  di.sproportionate  to  the  value 
of  the  husband's  estate,  fraudulent 
concealment  will  be  presumed,  and 
the  burden  of  proof  will  be  thrown 
on  him,  or  those  claiming  under  him 
after  his  death,  to  show  that  full 
di.sclosure  had  been  made  to  the  wife 
of  the  value  of  his  estate.  Warner's 
Estate,   210   Pa.   431. 

3  Lombard  v.  Morse,  155  Mass.  136. 


398  FRAUD.  [part  II. 

a  person,  through  the  medium  of  the  Statute  of  Uses,  to  dispose 
of  an  interest  vested  in  himself  or  some  third  person.  Thus, 
land  may  be  conveyed  to  A.  in  trust  for  sueh  uses  as  B.  should 
appoint;  or  in  trust  for  such  person  or  persons  generally  as  B. 
should  appoint;  or  in  trust  for  such  members  of  a  particular 
class — as  children,  grandchildren,  or  the  like — as  B.  should 
appoint.  This  right  of  appointment  in  B.  is  called  a  power. 
The  person  who  creates  the  power  is  the  donor;  the  person  by 
whom  it  is  to  be  exercised  is  called  the  donee  of  the  poirer,  or, 
when  he  actually  exercises  it,  the  appointor;  the  person  in 
whose  favor  the  appointment  is  made  is  the  appointee;  and 
those  for  whose  benefit  the  power  was  intended  to  be  executed 
are  termed  the  objects  of  the  power. 

Powers  of  this  kind  are  of  very  frequent  occurrence  in  English 
marriage  settlements,  l:)eing  the  ordinary  machinery  whereby 
marriage  portions  are  raised,  and  the  distribution  of  funds  among 
children  or  other  l^eneficiaries  regulated. 

It  is  a  cardinal  princii)le  in  the  law  of  powers  that  "a  person 
having  a  power  must  execute  it  bona  fide  for  the  end  designed, 
otherwise  it  is  corrupt  and  void."  This  was  the  language  of 
Lord  Keeper  Henley  in  Aleyn  v.  Belchier,  which  is  the  leading 
authority  upon  .the  subject.^  If  a  power  is  not  exercised  in 
good  faith,  and  for  the  purposes  for  which  it  was  created,  its 
exercise  will  be  deemed  fraudulent  in  equity,  and  will  Ijc  set 
aside  upon  a  bill  filed  by  a  party  in  interest. 

A  case  in  which  a  power  is  thus  im})roi)erly  exercised  is  said 
to  be  a  case  of  "a  fraud  upon  the  ])ower." 

The  plainest  case  of  a  fraud  upon  a  power  is  where  the  power 
is  exercised  for  the  personal  advantage  of  the  ajipointor.  If  a 
father  has  a  power  to  appoint  among  children,  and  agrees  with 
one  of  them,  for  a  sum  of  money,  to  appoint  to  him,  such  ap- 
pointment would  be  void.  Aleyn  v.  Belchier  and  Lane  v.  Page  ^ 
are  instances  in  which  powers  to  raise  marriage  portions  have 
been  im))roi)ei'ly  exercised  for  the  i)urpose  of  paying  the  debts 
of  the  appointor,  and  the  appointment  has,  in  consequence, 
been  set  aside.  The  same  rule  applies  to  appointments  made  with 
a  view  to  obtain  the  fund  appointed  through  undue  influence 
over  the  appointee,"'  oi-  with  an  exj:)ectation  of  the  appointee's 


1  1  Lead.  Cas.  Eq.  (4th  Eng.  ed.) 

sMarsden's   Trust,    4    Drew.    GOI, 

377. 

In    re   Kirwan's   Trusts,   25   Ch.  D. 

2  Ambler,  233. 

373. 

CH.  II.] 


FRAUD. 


399 


death  and  succession  to  his  estate ;  *  or  to  any  case  in  which  the 
motive  of  the  aj:)pointor  is  to  acquire  any  benefit  for  himself, 
either  directly  or  indirectly." 

Again  the  appointment  will  be  considered  fraudulent  and 
invalid,  if  it  is  exercised  for  the  benefit  of  a  stranger,  and  not 
for  thje  advantage  of  the  objects  of  the  power;  and  this  will  be 
so,  although  the  appointee  may  be  unaware  of  the  fraudulent 
design  of  the  appointor.^ 

257.  Appoininieut  must  be  made  solely  to  carry  out  the 
purpose  of  the  power;  Topliam  v.  The  Duke  of  Portland. 

A  power  will,  also,  be  deemed  to  be  improperly  exercised  if 
it  is  used  for  any  purposes  other  than  those  for  which  it  was 
ci'eated.  The  appointment  nmst  be  made  with  an  entire  and 
single  view  to  the  real  purpose  and  object  of  the  power,  and 
not  for  the  purpose  of  accomplishing  or  carrying  into  effect  any 
bye  or  sinister  object — sinister  in  the  sense  of  its  being  beyond 
the  purpose  and  intent  of  the  power.  There  must  be  a  pure, 
straightforward,  honest  dedication  of  the  property,  as  property, 
to  the  person  to  whom  the  appointor  affects  or  attempts  to  give 
it.4 

The  circumstance  that  the  donor  of  the  power  may  acquiesce 
in,  or  even  favor  the  fraudulent  exercise  of  the  power,  will  not 


1  Wellesley  v.  Mornington,  2  K.  & 
J.  143.  See  Lord  Hinchinbroke  v. 
Seymour,  1  Bro.  C.  C.  395,  where  a 
father  had  a  power  of  appointment, 
and  thinking  one  of  his  children  to  be 
in  consumption  appointed  in  favor  of 
that  chikl,  with  a  view  of  securing  the 
fund  as  administrator  of  the  chikl. 

2  Duke  of  Portland  v.  Topham,  11 
H.  L.  Cas.  32. 

3Marsden's  Trust,  4  Drew.  601. 
But  an  appointment  will  not  be  set 
aside  if  the  bargain  did  not  induce 
the  appointment.  See  Cooper  r. 
Cooper,  L.  R.  5  Ch.  212.  Children 
may  contract  with  eacli  other  to  give 
the  parent  who  is  the  appointor 
some  advantage.  Davis  r.  Uj)hill.  I 
Swanst.  130.  See  Roach  r.  Trood, 
3  Ch.  D.  429,  which  was  distinguished 
from  Marsden's  Trust  and  Topham  r. 


Duke  of  Portland  (supra);  and  also 
Henty  v.  Wrey,  21  Ch.  D.  332,  where 
the  appointment  was  held  not  to  be  a 
fraud  because  there  was  nothing  upon 
which  to  base  any  "judicial  infer- 
ence "  that  a  fraud  on  the  power  was 
intended.  It  is  to  be  noted,  also, 
that  in  Smith  v.  Somes  [1890],  1  Ch. 
2o0,  it  was  held  that  the  mere  fact 
that  a  release  of  a  limited  power  of 
appointment  will  result  in  a  benefit 
to  the  donee  is  not  sufficient  to  render 
the  release  fraudulent,  there  being  no 
duty  in  that  case  coupled  with  the 
power. 

••  Topham  v.  Duke  of  Portland,  31 
Beav.  .525;  1  De  G.,  J.  &  Sm.  517;  11 
II.  L.  Cas.  32;  L.  R.  5  Ch.  40.  See, 
also,  Salmon  i\  Gibbs,  3  De  G-  &  Sm 
343,  and  In  re  Perkins  [1893],  1  Ch. 
283. 


4(K)  FRAUD.  [PAKT  II 

render  such  exercise  valid,  if  the  appointment  is  one  calculated 
to  defeat  the  purposes  for  which  the  power  was  created.  The 
fraud  for  which  a  court  of  equity  sets  such  an  appointment  aside 
is  not  a  fraud  upon  the  donor,  but  a  fraud  upon  the  poicer.  If 
the  purpose  of  the  jpoicer  is  defeated,  the  consent  of  the  donor 
cannot  make  the  appointment  good.  Lee  v.  Femie  ^  and  the 
Duke  of  Portland's  case  are  illustrations  of  this  doctrine.  In 
the  first  case,  an  appointment  for  the  benefit  of  a  stranger  was 
deemed  invalid,  although  made  in  pursuance  of  an  arrangement 
with  the  donor  of  the  power.  In  the  latter  the  invalid  appoint- 
ment was  made  in  pursuance  of  the  expressed  wish  (agreed  to 
by  his  children)  of  the  testator;  and  yet  the  appointment  was 
held  bad,  because  made,  not  with  the  view  of  carrying  out  the 
purpose  of  the  power,  but  with  the  view  of  discountenancing  a 
marriage  of  the  duke's  sister  with  a  certain  gentleman. 

If,  however,  the  donee  of  a  discretionary  power  acts  with 
bona  fides  and  with  his  own  good  judgment  and  with  an  honest 
intention  of  carrying  out  the  purpose  of  the  power,  the  mere  cir- 
cumstance that  he  has  given  a  promise  to  the  donor  to  exercise 
the  power  in  a  certain  way  will  not  disqualify  him.  And  evi- 
dence is  admissible  to  show  that  the  donee  acted  on  his  own 
judgment,  and  that  that  judgment  coincided  with  his  promise.' 

An  appointment  bad  in  part  will  generally  be  invalid  in  toto. 
But  a  good  api)ointment  in  favor  of  one  child  will  not  be  invali- 
dated by  a  fraudulent  appointment  to  another,  if  the  two  can 
be  separated.^ 

258.  Adinissibility  of  parol  evidence  to  vary  or  contradict 
written  instruments  in  cases  of  fraud  ;  Woollam  v.  Hearn  ; 
G-illenple  v.  Moon. 

Having  examined  the  different  heads  of  Fraud,  it  will  be 
proper,  before  leaving  the  general  subject,  to  notice  briefly  one 
or  two  rules  which  have  been  laid  down  by  Courts  of  Chancery 
for  the  pui'pose  of  effectually  securing  the  relief  to  which  the 
injvu'ed  party  is  entitled. 

It  is  one  of  the  rules  of  evidence  at  common  law  that  parol 
testimony  shall  not  be  admitted  for  the  purpose  of  varying,  add- 
ing to,  or  taking  away  from  the  language  of  a  written  instru- 

»  1  Bciu-.  48:i  See,  also,  In  re  Turner's  Settled  Es- 

2  Williams's   Appeal,    73    Pa.    249.       tates,  28  Ch.  D.  205. 

3  Rowley  v.  Rowley,  Kay,   242. 


CH.  II.]  FRAUD.  401 

ment;  the  reason  for  the  rule  l^eing  the  obvious  one  that  where 
an  agreement  has  been  reduced  to  writing  by  the  act  and  con- 
sent of  the  parties,  its  terms  should  be  sought  for  in  the  instru- 
ment which  has  been  selected  as  the  repository  and  evidence  of 
the  ]:)urpose  of  the  contracting  parties,  and  not  on  one  side  of  it, 
in  extrinsic  facts  or  allegations.^  It  will  also  be  remembered 
that  the  Statute  of  Frauds  requires  that  the  creation  and  trans- 
fer of  certain  estates  in  land  shall  be  manifested  and  ])roved  in 
writing;  and  that  contracts  of  a  certain  kind  shall  not  be  en- 
forced unless  there  exists  some  written  memorandum  of  the 
same,  signed  by  the  party  who  is  sought  to  be  charged  therewith. 
Now,  it  is  manifest,  that  if  the  conmion-law  rule  of  evidence 
above  stated  and  the  provisions  of  the  Statute  of  Frauds  were 
rigidly  adhered  to,  without  any  exceptions  whatever,  great  in- 
justice would  in  many  instances  ensue,  and  that  these  legal 
rules  would  become  simply  the  refuge  and  hiding-places  of  fraud. 
It  is,  therefore,  established  in  equity  that  no  rule  of  law  shall 
be  used  for  the  purpose  of  protecting  fraud,  and  that  while  in 
general  the  rules  of  evidence  are  the  same  in  equity  as  at  law,' 
yet  in  cases  of  accident,  mistake,  and  fraud,  parol  evidence  is 
admissible  for  the  purpose  of  making  out  the  complainant's  case, 
although  the  effect  of  the  admission  may  be  to  alter,  or  add  to, 
a  written  instrument,  or  to  affect  the  title  to  real  estate.  This 
equitable  n.de  arises  from  the  necessity  of  the  case,  and  in  order 
that  the  jurisdiction  of  Courts  of  Chancery  in  such  cases  (partic- 
ularly those  of  fraud)  may  be  effectively  asserted;  for,  as  was 
said  by  Lord  Thurlow,  "the  moment  you  impeach  a  deed  for 
fraud,  you  must  either  deny  the  effect  of  fraud  on  a  deed,  or  you 
cannot  but  be  under  the  necessity  of  admitting  parol  evidence  to 
prove  it."  ^  This  doctrine  has  been  followed  by  very  many  cases 
in  England  and  the  United  States;  although  the  decisions 
throughout  the  Union,  upon  the  application  of  the  doctrine,  have 
not  been  altogether  harmonious.  In  some  states,  as  in  New 
York,"*  and  Pennsylvania,-^  the  tendency  has  been  to  give  very 

'American    note    to    Woollam    ?;.  ^ Thomson's    Lessee    v.    White,    1 

Hearn,  2  Lead.  Cas.  Eq.  517.  Dallas,  447;  Christ  v.  Diffenbach,  1  S 

2  Manning  7' .  Lechmere,  1  Atk.  iry'.'.  &  R.  464;  Iddings  v.  Iddings,  7  Id 

3  Shelburne  7'.  Inchiquin,  1  Bro.  ('.  Ill;    Miller    v.    Ilender.^on,     10    Id 
C".  338;  Hill  on  Trustees,  166.  ^'K);   Clark    v.    Partridge,    2   Pa.    13 

*  Gillespie  ?'.  Moon,  2  Johns.  Ch.  Rearich  v.  Swinehart,  11  Id.  233; 
585;  Keisselbrack  v.  Livingston,  4  Martin  v.  Berens,  67  Id.  463;  Bcegle 
Id.  144.  V.  Wentz,  55  Id.  369;  Cook  v.  Cook, 

26 


402  FRAUD.  [part  II. 

great  latitude  to  the  admission  of  parol  evidence;  in  others 
such  as  Massachusetts,  the  in(  lination  of  the  courts  has  been  the 
other  way.^  The  application  of  this  doctrine  is  seen  in  those 
cases  in  which  absolute  deeds  may  be  shown  to  be  mortgages; 
in  which  specific  i)erformance  is  sought  to  be  resisted  or  en- 
forced; in  which  the  reformation  of  written  instruments  is  de- 
creed; as  well  as  in  cases  of  fraud,  accident,  or  mistake.^ 

It  need  scarcely  be  added  that  when  parol  evidence  has  been 
admitted  for  the  purpose  of  raising  a  presumption  of  fraud,  it 
is  equally  admissible  on  behalf  of  the  defendant  for  the  purpose 
of  rebutting  that  presumption.  * 

259.  How  the  right  to  impeach  a  fraudulent  transaction 
may  be  lost ;  confirmation  ;  release  ;  acquiescence. 

The  right  to  impeach  a  transaction  on  the  ground  of  fraud 
may  be  lost  by  confirmation,  by  release,  by  acquiescence,  or  by 
delay ;  and  such  a  right  has  no  place  as  against  a  bona  fide  pur- 
chaser for  a  valuable  consideration,  without  notice.^ 

In  reference  to  confirmation  and  release,  it  need  only  be  said 
that  when  such  defences  are  relied  on,  it  must  clearly  appear 
that  the  party  confirming  was  fully  apprised  of  his  right  to  im- 
peach the  transaction ;  and  that  he  acted  freely,  deliberately, 
and  advisedly,  with  the  intention  of  confirming  a  transaction 

69  Id.  443;  Wolford   )'.  Herrington,  Co.,  5  R.  I.  130;  Blakeman  v.  Blake- 

74  Id.  311;  Lippincott  v.  Whitman,  man,  39  Conn.  320;  Pitcher  v.  Hen- 

83  Id.  244.  csscy,    48    N.    Y.    415;    Wheeler    v. 

1  Locke  r.  Whiting,  10  Pick.  279;  Kirtland,    23    N.    J.    Eq.    13;    Huss 

Glass  TJ.  Hulbert,  102  Mass.  24.    This  r.   Morris,   63  Pa.  367;   Wharton  v. 

subject   will  be   found   discussed   at  Douglass,    76    Id.    273;    Kearney   v. 

length    in    the     American    note    to  Sascer,  37  Md.  264;  Fleming  v.  Mc- 

Woollam  V.  Hearn,  2  Lead.  Cas.  Eq.  Hale,   47   111.   282;   Moore   v.   Munn, 

670.    See,  also,  Hill  on  Trustees,  166;  69  Id.   591;  Cain  v.   Hunt,  41   Ind. 

1  Sug.  V.  &  P.   243   (8th  Am.  cd.),  466;    Beers   v.    Beers,    22   Mich.   42; 

note    by    Perkins;    and    particularly  Van  Dusen  v.  Parley,  40  la.  70;  Lake 

Wharton  on  Evidence,  §§  1019  e<  .se^.,  v.    Meacham,    13    Wis.    355;    Guem- 

where  the  authorities  are  collected.  sey  v.  Ins.  Co.,   17  Minn.   104;  Ex- 

Amoiig     the     numerous     authorities  change  Bank  r.  Russell,  50  Mo.  531; 

cited  by  Dr.  Wharton,  the  following  Murray  v.  Dake,  46  Cal.  654.     See, 

may    be    particularly    referred    to:  also,    Rowand    v.    Finney,    96    Pa. 

Rhodes    v.    Farmer,    17    How.    467;  192. 

Brown  v.  Ilolyoke,  53  Me.  9;  Buel  ;-.  2  See    ante,    Part    I.,    Chap.    VII.; 

Miller,  4  X.  II.  196;  Cutler  r.  Smith,  post,  Part  III.,  Chaps.  I.  and  III. 
43  Vt.   577;   Russell   v.   Bomy,    115  3  Kerr    on    Fraud    and    Mistake, 

Mass.  300;  Diman  v.  Providence  R.  Chap.  I.,  §  VI. 


CH.  II.] 


FRAUD. 


403 


which  he  knew,  or  might,  or  ought,  with  reasonable  or  proper 
dihgence,  to  have  known  to  be  impeachable.^  If  having  elected 
to  confii'm  under  such  circumstances,  the  injured  party  cannot 
rescind  upon  subsec-[uent  discovery  of  new  incidents  in  the 
fraud.  ^ 

A  transaction,  originally  voidable  on  the  ground  of  fraud, 
may  become  unassailable  in  consequence  of  the  acquiescence  of 
the  injured  party  in  the  state  of  affairs  which  has  resulted  from 
the  fraudulent  act.  A  man  who  has  a  right  to  avoid  a  contract 
cannot  take  the  chance  of  its  turning  out  advantageously  to 
himself,  and  then,  abiding  the  event,  and  finding  that  it  has 
turned  out  to  his  disadvantage,  elect  to  avoid  it."*  When  a  party 
desires  to  rescind  on  the  ground  of  fraud  or  mistake,  he  must, 
upon  the  discovery  of  the  facts,  at  once  announce  his  intention, 
and  adhere  to  it.  He  is  not  permitted-to  play  fast  and  loose. 
Delay  and  vacillation  are  fatal  to  the  right  which  had  before 
subsisted.  And  this  rule  is  ))eculiarly  applicable  to  speculative 
property  which  is  liable  to  large  and  constant  fluctuations  in 
value. ^  But  an  acquiescence  which  is  the  result  of  ignorance  of 
material  facts  goes  for  nothing.  The  party  must  have  knowledge 
of  the  facts,  in  order  that  acquiescence  may  be  brought  home  to 
him.^ 

260.  Delay  ;  bona  fide  purchasers  for  value. 

A  person  who  is  injured  by  fraud  must  be  prompt  in  seeking 
redress,^  and  he  nmst  jjrosecute  his  suit  with  diligence.  Laches 
and  neglect  are  always  discountenanced.  Nothing  can  call  a 
Court  of  Chancery  into  activity  but  conscience,  good  faith,  and 


1  Kerr  on  Fraud  and  Mistake,  296. 

2  Wilson  r.  Hundley,  96  Va.  96. 

3  Ormes  r.  Beadel,  2  De  C,  F.  &  J. 
333.  See  Bank  of  .Macon  r.  Bartlett, 
71  Ga.  798;  Kinne  v.  Webb,  12  U.  S. 
App.  137;  Howard  v.  Turner,  1.35 
Pa.  319;  Jutte  v.  Hutchinson,  189  Id. 
221. 

*  Grymes  v.  .Sanders,  93  U.  S.  62; 
Thomas  v.  Bartow,  48  \.  Y.  200; 
Lloyd  r.  Brewster,  4  V:\\^o  V\\.  037; 
Saratoga,  etc.,  W.  Go.  r.  INiwe,  24 
Wend.  74;  Diniaii  v.  Providence  H. 
Go.,  5  R.  I.  130;  Kinne  r.  Webb  (G. 
Gt.  App.),  54  Fed.  Rep.  34;  Ruohs  v. 


The  Bank,  94  Tenn.  57-72;  Stuart  v 
Hayden,  36  l^.  S.  App.  462. 

5  Kerr  on  Fraud  an  1  Mistake,  298 
300;  Presstman  v.  Mason,  68  Md.  78 
Dickenson    v.    Farley,    84    Va.    240 
Dringer  v.  Jewett,  43  N.  J.  Eq.  701 
Short  r.  Mathis,  107  Ga.  807;  i^am- 
berton   v.   Youmans,   84   Minn.    109; 
Sherman  v.  Frasier,   112  Iowa,   236. 
See  Shriver  v.  Garrison,  30  W.  Va. 
456. 

«  Johnston  r.  Standard  Mining  Co., 
148  U.  S.  360;  Buikling  Ass'n  v. 
Blair,  98  Va.  490;  Streicher  v.  Mur- 
ray, 36  Mont.  45. 


404 


FRAUD. 


[part  II. 


reasonable  diligence,  and  where  these  are  wanting,  the  court  is 
passive  and  does  nothing.^  A  court  of  equity  does  not  en- 
courage stale  claims,  and  a  party  may  lose  his  right  to  complain 
of  a  fraud  by  his  delay. ^  There  is,  perhaps,  no  certain  rule  as  to 
the  length  of  time  which  will  bar  the  right  to  relief  in  cases  of 
fraud.  What  is  a  reasonable  time  must  depend  upon  the  discre- 
tion of  the  court,  the  exercise  of  which  will  be  regulated  by  the 
circumstances  of  the  particular  case.'"'  Thus,  in  Michoud  v. 
Girod,**  it  was  said  that  a  court  of  equity  would  not  refuse  relief 
within  the  lifetime  of  either  of  the  parties  upon  whom  the  fraud 
is  proved,  or  within  thirty  years  after  it  becomes  known  to  the 
party  whose  rights  are  affected  by  it;  and  in  Gresley  v.  Mousley  ^ 
a  transaction  between  solicitor  and  client  was  set  aside  two 
years  after  the  death  of  the  former,  and  eighteen  years  after  that 
of  the  latter.  On  the  other  hand,  cases  have  occurred  in  which 
the  utmost  promptness  has  been  required.^  Of  these,  instances 
may  be  found  in  those  cases  in  which  shareholders  of  companies 
have  sought  to  repudiate  their  allotments  and  recover  their 
money  on  the  ground  of  misrepresentation,  and  in  which  the 
greatest  vigilance  and  diligence  have  been  exacted.^ 

In  many  cases  courts  of  equity  have  taken  the  statutes  of 
limitation  as  standards  by  which  to  measure  the  time  properly 
allowable  for  the  assertion  of  an  equitable  right.  But  this  is 
by  analogy  only;  and  chancery  tribunals  will  not  hesitate  to 


1  Smith  V.  Clay,  Ambler,  645;  Sulli- 
van V.  Portland  R.  Co.,  94  U.  S.  806; 
Brown  v.  County  of  Buena  Vista,  95 
Id.  160;  Richards  v.  Mackall,  124  Id. 
187;  Wills  V.  Wood,  28  Kan.  400; 
Evans  ;•.  Duke,  140  Cal.  22;  Wilkes  v. 
Phillips,  120  Ga.  728. 

2  See  ante,  p.  60,  Maxim  III.  See, 
also,  Norris  v.  Haggin,  136  U.  S.  386; 
Rath  V.  Vanderlyn,  44  Mich.  597; 
Dennis  /'.  Jones,  44  N.  J.  Eq.  513;  In- 
low  /'.  Christy,  187  Pa.  191;  Bruner 
('.  Finlcy,  Id.  402;  Derr's  Estate,  203 
Id.  101  (citing  the  text);  Com.  ex  rel. 
V.  Reading  Trac.  Co.,  204  Id.  151,  and 
McQueen  v.  Burhans,  77  Minn.  382; 
Ripple  r.  Kuehne,  100  Md.  672. 

3  Ryder  v.  Emrick,  104  111.  470; 
Kerr  on  Fraud  and  Mistake,  305; 
Brown  v.  Norman,  65  Miss.  369. 


■*  4  How.  561 ;  Coddington  v.  Pensa- 
cola  &  Georgia  R.  Co.,  103  U.  S.  409; 
Johnson  v.  Somerville,  33  N.  J.  Eq. 
152,  621;  Farwell  v.  Gr.  West.  Tel. 
Co.,  161  111.  522-596;  Inlow  v. 
Christy,  187  Pa.  190;  Mullen  v. 
Walton,  142  .\la.  166. 

5  4DeG.  &  J.  78. 

6  Hunt  V.  Blanton,  89  Ind.  38. 

7  See  Heyman  v.  European  Central 
Railway  Co.,  L.  R.  7  Eq.  154;  Den- 
ton V.  Mac  Neil,  2  Id.  352;  Taite's 
Case,  3  Id.  795;  Whitehouse's  Case, 
Id.  794.  See,  also,  Reese  River  Min- 
ing Co.  V.  Smith,  L.  R.  4  H.  L.  64; 
Ayerst  v.  Jenkins,  L.  R.  16  Eq.  275; 
Ashhurst's  Appeal,  60  Pa.  290;  Ev- 
ans's Appeal,  81  Id.  278;  Watts's 
Appeal,  78  Id.  371. 


CH.  II.]  FRAUD.  405 

apply  their  own  doctrines,  as  to  delay,  whenever  the  circuni' 
stances  of  the  case  require  it.^ 

It  was  stated  above  ^  that  the  right  to  set  aside  a  transaction 
on  the  ground  of  fraud  has  no  place  as  against  a  bona  fide  pur- 
chaser for  a  valuable  considcialion  without  notice.  Tiiis  is  due, 
however,  rather  to  the  existence  of  certain  distinct  ecjuities, 
which  all,  perhaps,  gi'ow  out  of  fraud,  but  which  seem  to  require 
a  separate  consideration.  These  are  the  equities  of  notice  and 
of  a  bona  fide  purchaser  for  value ;  and  they  will  be  attempted  to 
be  explained  in  the  succeeding  chapter. 

1  See  Allore  i'.  Jewell,  94  U.  S.  ham  r.  Ludlow,  37  N.  J.  Eq.  138; 
512;  Smiths.  Clay,  Ambler,  645;  Wil-  Bell  r.  Moore,  79  Va.  341;  Church  v. 
son  V.  Anthony,  19  Ark.  16;  Taylor  Winton,  196  Pa.  107;  Kerr  on  Fraud 
V.  Adams,  14  Id.  62;  Johnson  c.  and  Mistake,  304;  Hill  on  Trustees, 
Johnson,  5  Ala.  90;  Person  v.  San-  16S.  8e.e,  however.  Gibbons  p.  Hoag, 
ger,  2  Ware,  256;  Fisher  r.  Boody,  1  !»s  111.  45.  See  Richardson  i'.  Greg- 
Curtis,  219;  Cholmondeley  r.  Clinton,  ory,  126  Id.  166. 
2  Jac.  &  W.  141;  Sullivan  r.  Port-  '^  Supra,  §259. 
land  R.  Co.,  94  U.  S.  811;  Bucking- 


406 


NOTICE. 


[part  II. 


CHAPTER  III. 


NOTICE. 


261.  Doctrine  of  notice  not  applica- 

ble to  contests  between  purely 
legal  titles. 

262.  Applicable   to   equitable   titles; 

Le  .\'rre  v.  Le  Nenc. 

263.  Illusti'atioMs  of  the  doctrine. 

264.  Parties  by  whom  want  of  notice 

may  be  .set  u'l.    Rules  on  this 
subject. 
26.5.  Extent    of    protection   afforded 
by  want  of  notice. 

266.  English   rule   that   payment   of 

purchase-money  and  acquisi- 
tion of  legal  title  must  both 
precede  notice. 

267.  Rule  in  United  States;  protec- 

tion pro  tanto. 

268.  Notice  actual  and  constructive; 

actual  notice  either  direct  or 
presumptive. 


269. 

270. 
271. 

272. 

21?,. 
274. 
275. 

276. 

277. 

278. 
279. 


Constructive  notice;  Vice-Chan- 
cellor  Wigram's  division. 

Notice  by  registration. 

What  registration  will  operate 
as  notice. 

Effect  of  actual  notice  of  unreg- 
istered conveyance. 

Constructive  notice  of  same. 

Lis  PemJens. 

Plea  of  bona  fide  purchaser  for 
value. 

Can  be  used  by  the  holder  of  an 
equitable  title. 

Doctrine  of  seeing  to  the  appli- 
cation of  purchase-money. 

Abolished  in  England. 

Of  little  importance  in  the 
United  States. 


261.  Doctrine  of  notice  not  applicable  to  contests  between 
purely  legal  titles. 

In  a  conflict  between  purely  legal  titles,  the  circumstance 
that  one  of  the  parties,  at  the  time  he  acquired  his  rights,  had 
any  knowledge  of  the  existence  of  the  adverse  claim,  is  a  fact 
which  is  entirely  immaterial,  and  is  regarded  as  of  no  conse- 
cjuence  whatever  in  determining  the  judgment  of  the  court. 

A  valid  title  at  law  is  good  against  every  one;  and  may  be 
enforced  by  an  action  at  law,  or  by  a  bill  in  equity  where  the 
equitable  jurisdiction  is  concurrent.  Now,  in  such  actions  or 
bills,  as  has  been  stated,  notice  is  not  material;  that  is  to  say, 
if,  when  the  plaintiff  bought  his  title,  he  knew  of  the  (alleged) 
valid  legal  title  of  the  defendant,  the  plaintiff's  position  is  ren- 
dered no  worse  by  such  knowledge ;  and  if,  on  the  other  hand, 
he  bought  in  ignorance  of  such  title,  his  right  is  none  the  stronger 


CH.  III.] 


NOTICE. 


407 


by  reason  of  his  ignorance.^  And  this  is  so,  not  only  where  the 
opposing  parties  claim  under  distinct  hostile  titles,  but  also 
where  they  claim  under  the  same  title.  Thus,  suppose  A.  buys 
land  from  B.  under  the  impi-ession  that  the  latter  is  unmarried, 
and  that  after  B.'s  death  a  woman  claiming  to  have  been  his 
wife  files  a  bill  for  dower  against  A.,  the  latter's  ignorance  of  the 
marriage  will  be  no  defence,  and  his  plea  that  he  is  a  bona  fide 
purchaser  for  value  without  notice  would  be  overruled  by  a 
chancellor.'  To  this  rule  there  are  two  notable  exceptions: 
First,  a  purchaser  without  notice  of  a  prior  voluntary  settlement 
may  protect  himself  by  such  absence  of  notice;  but  if  he  buys 
with  notice  of  the  voluntary  conveyance,  he  takes  subject  to  it.^ 
Secondly,  a  purchaser  without  notice  of  a  prior  unrecorded  deed 
may  protect  himself;  ]m\  villi  notice  he  cannot.^  These,  how- 
ever, are  excejjtions;  and  tlie  general 'rule  at  law  is  that  each 
party  stands  or  falls  on  his  own  strict  right.'^ 

To  illustrate  again:  In  a  contest  between  a  party  who  rests 
upon  a  paper  title,  and  one  who  claims  simply  by  virtue  of  ad- 
verse possession,  each  party  bases  his  right  of  recovery,  not 
upon  an  equitable,  bvit  upon  a  legal  title;  and  it  can  make  no 
possible  difference  that  he  who  claims  by  virtue  of  an  adverse 
possession  had  notice  of  the  legal  paper  title,  but,  on  the  con- 
trary, his  notice  thereof  would  be  an  element  to  show  that  the 
adverse  possession  was  hostile  in  its  character,  and,  therefore, 
capable,  if  continued  for  a  sufficient  time,  of  ripening  into  an 
unassailable  title. 

Still  another  illustration  of  the  doctrine  may  be  found  in  the 
rule,  which  exists  in  England  and  in  some  of  the  United  States, 
upon  the  subject  of  voluntary  conveyances.  According  to  that 
rule,  a  subsequent  grantee  is  entitled  to  avoid  a  prior  voluntary 
conveyance,  although  he  had  notice  of  the  same  at  or  before  the 
date  of  the  conveyance  to  himself.    Notice,  under  this  view  of 


1  Exampli  gratia:  ejectment  by  pur- 
chaser from  heir,  who  claims  against 
an  alleged  will  of  the  ancestor  against 
purchaser  from  the  devisee. 

2  Williams  v.  Lambe,  3  Bro.  C.  C. 
264;  post,  p.  413. 

3  In  England  the  rule  is  the  other 
way.  Buckle  v.  Mitchell,  18  Ves.  111. 
Cf.  Cathcart  v.  Robinson,  5  Pet.  279; 
Lancaster  v.   Dolan,    1   Rawle,   246. 


But  in  the  United  States  the  rule  is 
as  stated  in  the  text. 

■*  Le  Neve  v.  Le  Neve,  post,  §  272. 

5  See  the  remarks  of  Mr.  Justice 
Davis  in  Gaines  v.  New  Orleans,  6 
Wall.  716;  and,  also,  Ruckman  v. 
Decker,  23  N.  J.  Eq.  283;  and  the 
American  note  to  Basset  v.  Nos- 
worthy,  2  Lead.  Cas.  Eq.  46  (4th 
Am.  ed.). 


408 


NOTICE. 


[part  II. 


the  law,  cannot  vary  the  question,  for  it  is  only  notice  of  a  con- 
veyance which  was  void  against  a  subsequent  purchaser  for  a 
valuable  consideration ;  '  in  other  words,  it  is  only  notice  of  a 
defeasible  legal  title.- 

262.  Applicable  to  equitable  titles  ;  Le  Neve  v.  Le  Neve. 

So  much  for  the  rule  as  to  legal  titles  and  as  to  the  remedies, 
whether  legal  or  equitable,  to  enforce  them.  Where,  however, 
equitable  titles  and  rights  are  concerned,  or  where  equitable 
remedies  which  are  simply  auxiliary  to  the  legal  remedy,  or 
which  give  a  different  kind  of  relief  from  legal  actions,  are  in- 
voked, the  rule,  in  chancery,  is  different.  A  man  who  acquires, 
even  for  valuable  consideration,  a  legal  title  with  the  knowl- 
edge that  it  is  affected  by  an  equity,  takes  it  subject  to  that 
equity;  a  fortiori  is  his  ac(iuisition  so  subject,  if  it  is  the  purchase 
of  a  new  equitable  title.  On  the  other  hand,  a  purchaser  may 
often  defend  himself  against  the  assertion  of  an  equitable  right, 
on  the  ground  that  when  he  paid  his  money  he  did  not  know  that 
any  such  right  existed. 

The  principle  in  these  cases  has  been  well  stated  by  a  learned 
writer  to  be  that  an  interest,  which,  if  legal,  would  be  inde- 
feasible, shall  not  be  defeated,  by  reason  of  its  equitable  charac- 
ter, by  a  party  who  has  notice  of  it.  If  being  legal  it  may  be 
defeated  at  law,  there  is  no  equity  to  preserve  it.^ 

In  the  leading  case  of  Le  Neve  v.  Le  Neve  "*  this  doctrine  is 
stated  by  Lord  Chancellor  Hardwicke  in  the  following  language: 
"A  person  who  purchases  an  estate  (although  for  valuable  con- 
sideration) after  notice  of  a  prior  ecjuitable  right  makes  himself 


1  Per  Lord  Ellenborough  in  Doe  v. 
James,  16  East,  212;  note  to  Sexton 
V.  Wheaton,  1  Am.  Lead.  Cas.  46. 

2  It  will  be  remembered,  as  stated 
in  the  text,  that  in  the  United  States 
a  subsequent  purchaser  for  value  can- 
not avoid  a  prior  grant  if  he  has  no- 
tice of  the  same.  But  the  ground 
upon  which  the  courts  in  the  United 
States  have  refused  to  follow  the 
English  rule  is  that  the  legal  title  ac- 
quired by  the  second  purchaser  is 
bad,  because  the  second  sale  is  a  fraud 
on  the  part  of  the  vendor,  and  if  the 
second  vendee  has  notice  of  the  first 
conveyance,  the  purchase  itself  is  an 


act  of  collusion.  See  Lancaster  v. 
Dolan,  1  Rawle,  246.  See,  also,  tlie 
remarks  of  C.  J.  Kent  at  the  close  of 
his  opinion  in  Jackson  v.  Burgot,  10 
Johns.  Ch.  462,  and  the  decision  in 
Worseley  v.  De  Mattos,  1  Burr.  474, 
where  the  indorsee  of  a  bill  of  lading 
was  nonsuited  in  an  action  at  law, 
because  he  had  notice  of  a  prior,  but 
defective,  transfer  of  the  bill,  which 
had  been  followed  by  delivery  of  the 
goods. 

3  Adams's  Equity,  152. 

4 .3  Atk.  646;  2  Lead.  Cas.  Eq.  35. 
See  Jones  v.  Van  Doren,  130  U.  S. 
691. 


CH.  111.]  NOTICE.  409 

a  mala  fide  purchaser,  and  will  not  be  enabled,  by  getting  in  the 
legal  estate,  to  defeat  such  prior  equitable  interest." 

"Fraud  or  mala  fides,''  said  the  same  learned  judge,  "is  the 
true  ground  on  which  the  court  is  governed  in  cases  of  notice."  ^ 
The  subject  of  Notice  may,  therefore,  with  propriety  be  dis- 
cussed immediately  after  that  of  Fraud;  although,  from  its 
importance,  it  seems  proper  to  treat  it  as  a  distinct  head  of  ecjuity 
jurisprudence. 

263.  Illustrations  of  the  doctrine. 

In  considering  this  subject,  it  may,  in  the  first  place,  be  de- 
sirable to  define,  as  nearly  as  may  be,  what  Notice  is. 

Notice,  then,  in  its  technical  sense,  is  the  legal  cognizance  of 
a  fact.  It  diffei-s  from  knowledge,  for  knowledge  may  exist 
without  notice,  and  there  may  be  notice  without  any  actual 
knowledge.  Thus  a  court,  in  the  consideration  of  a  cause,  may 
be  bound  to  take  judicial  notice  of  facts  of  which  no  actual 
proof  whatever  exists:  and,  on  the  other  hand,  a  judge  or  a  jury 
may  be  comix'lled  to  disi-egard  known  facts,  because  although 
proved  to  exist,  they  cannot  be  judicially  recognized  in  the  de- 
termination of  the  particular  issue.  So,  also,  there  may  be  no 
technical  notice  of  a  right  or  title,  although  knowledge  of  the 
right  or  title  may  exist;'  and  again,  there  may  be  notice  of 
another's  right  although  there  is  no  knowledge  whatever  that 
any  such  right  is  claimed.^ 

Notice,  therefore,  in  the  sense  here  used,  may  be  said  to  be 
the  definite  legal  cognizance,  either  actual  or  presumptive,  of  a 
right  or  title;  and  the  doctrine  of  Notice  in  Equity  may  be 
described  to  be  this,  viz.,  that  where  such  cognizance  is  shown 
to  exist,  either  by  proof  as  a  fact  or  by  presumption  of  law,  the 
right  or  title,  thus  proved  to  be  known,  will  be  capable  of  as- 
sertion in  equity  as  against  a  party  who  might  otherwise  and 
at  law  have  disregarded  it. 

It  is  obvious  that  the  cases  in  which  this  doctrine  arises  are 
numerous. 

If  a  man  holds  a  legal  title  to  an  estate,  but  his  conscience  is 
affected  with  a  trust  in  favor  of  another,  he  may  sell  the  estate, 
and  the  purchaser,  if  he  buys  bona  fide  and  for  value,  and  has 

1  See  Kettlewell  v.  Watson,  21  Ch.  record  is  relied  upon  as  notice.  See 
D-  705.  infra,  §  271. 

2  As,  for  example,  where  a  deed  is  a  As,  for  instance,  the  notice  of  a 
defectively    acknowledged    and    the  title  under  a  recorded  conveyance. 


410 


NOTICE. 


[part  II. 


no  notice  of  the  trust,  will  take  it  discharged  of  the  same,  and 
the  remedy  of  the  cestui  que  trust  will  be  against  the  tmstee 
alone.  ^ 

But  if  the  purchaser  has  notice  of  the  trust,  he  will  be  bound 
in  the  same  way  as  the  original  trustee ;  in  other  words,  he  will 
be  construed  to  hold  the  legal  title  as  a  trustee  for  the  equitable 
owner.^ 

The  same  rule  will  be  enforced  for  the  protection  of  prior 
equitable  vendees — (i.  e.,  vendees  under  agreements  not  consum- 
mated by  a  conveyance  of  the  legal  title) — holders  of  an  equitable 
or  of  a  defective  mortgage — vendors  who  have  parted  with  the 
legal  title,  but  who  still  may  have  an  equitable  lien  for  unpaid 
purchase-money;  purchasers  under  an  unregistered  conveyance,^ 
and  parties  for  whose  benefit  covenants  have  been  entered  into 
which  affect  the  land,  although  they  may  not  technically  run 
with  the  land.^ 

Moreover,  where  a  party  has  control  of  the  legal  title  to  prop- 
erty, be  cannot  be  compelled  to  make  or  permit  a  transfer  of  it 
by  one  in  whom  it  is  vested  in  disregard  of  the  interests  of  the 
equitable  owners.  The  ecjuitable  title  of  such  owners  must  be 
taken  notice  of  .^ 


1  Basset  v.  Nosworthy,  2  Lead.  Cas. 
Eq.  1 ;  Perry  on  Trusts,  §  218. 

2  Coble  V.  Nonemaker,  78  Pa.  506; 
Day  V.  Cohn,  65  Cal.  508;  Hill  on 
Trustees,  164  (359,  4th  .\m.  ed.),  and 
notes;  Perry  on  Trusts,  §  217;  First 
Nat.  Bank  v.  Leech,  207  111.  215. 

•'  Notes  to  Le  Neve  v.  Le  Neve,  2 
Lead.  Cas.  Eq.  35. 

4Tulk  V.  Moxhay,  2  Phil.  774 
Wilson  V.  Hart,  L.  R.  1  Ch.  463 
Western  v.  MacDermott,  L.  R.  2  Ch 
72;  Clegg  v.  Hands,  44  Ch.  D.  503 
See,  also,  Keates  v.  Lyon,  4  Id.  21 S 

5  Thus  in  Lowry  v.  The  Commer- 
cial and  Farmers'  Bank  of  Baltimore 
decided  by  Chief  Justice  Taney  in  the 
Circuit  Court  of  the  United  States  for 
the  Maryland  District,  it  was  ruled 
that  where  bank  stock  had  been  be- 
queathed to  an  executor  in  trust  to 
pay  the  dividends  to  certain  persons, 
and  the  executor  had  transferred  it  to 
one  who  made  advances  thereon  for 


the  use  of  the  executor,  the  bank 
which  had  issued  the  certificate,  hav- 
ing notice  that  the  stock  belonged 
originally  to  the  testator,  was  bound 
to  look  at  the  title  of  the  executor 
under  the  will  before  it  permitted  the 
transfer.  In  this  case  the  transfer 
was  made  by  the  executor  as  such, 
and  there  was  no  proof  that  there  was 
any  actual  notice  to  the  bank  that 
the  stock  had  been  specially  be- 
queathed, and  that  the  executor  was 
violating  his  trust  by  making  the 
transfer.  Yet  it  was  held  that  the 
bank  was  bound  to  take  notice  of  the 
will  when  the  transfer  was  proposed 
by  one  of  the  executors;  that  it  was 
negligence  in  the  bank  not  to  ex- 
amine it,  and  that  if  it  was  ignorant 
of  its  contents,  and  of  the  specific 
bequest  of  the  stock,  it  was  its  own 
fault ;  that  it  must  be  dealt  with  as  if 
it  had  possessed  actual  knowledge 
that  the  stock  in  question  was  specifi- 


CH.  III.] 


NOTICE. 


411 


On  the  other  hand,  want  of  notice  will  operate  to  protect  one 
who  buys  from  a  trustee,  or  a  subsequent  vendee,  or  mortgagee 
who  gets  in  the  legal  title,  or  a  purchaser  under  a-duly  registered 
conveyance. 

264,  Parties  by  whom  want  of  notice  may  be  set  up. 
Rules  on  this  subject. 

It  is  important  to  determine,  with  some  precision,  by  whom 
the  defence  of  want  of  notice  may  be  set  up,  and  this  is  more 
particularly  so  as  there  was  at  one  time  a  seeming  conflict  of 
authority  upon  the  question  whether  such  a  defence  can  be 
taken  advantage  of  by  the  holder  of  an  equitable,  as  well  as  of 
a  legal,  title.  The  better  opinion  now  seems  to  be  that  the  ap- 
parently conflicting  decisions  upon  this  point  may  be  reconciled 
under  the  views  which  have  been  expressed  in  certain  English 
cases,  and  especially  in  Phillips  v.  Phillips,^  where  the  subject 
was  clearly  explained.  The  rules  which  are  now  recognized  are, 
in  substance,  these : — 

First.  The  holder  of  a  legal  title  may  always  set  up  the  want 
of  notice  of  an  equity  as  a  defence  to  its  assertion ;  and  as  against 
him  a  Court  of  Chancery  will  grant  no  relief.^  When  the  legal 
title  is  obtained  at  the  time  of  the  purchase  nothing  can  be 
clearer  than  that  the  purchaser  without  notice  is  entitled  to 


cally  bequeathed  by  the  testator,  and 
was  not,  by  the  will,  to  be  trans- 
ferred. Lowry  v.  The  Commercial 
and  Farmers'  Bank  of  Baltimore,  3 
Am.  L.  J.  (n.  s.)  Ill;  Bayard  v.  The 
Farmers'  &  Mechanics'  Bank,  52  Pa. 
232.  See  Albert  v.  The  City  of  Balti- 
more, 2  Md.  159;  Stockdale  v.  The 
South  Sea  Company,  Barnardiston's 
R.  363;  Harrison  v.  Harrison,  2  Atk. 
121;  Davis  v.  Bank  of  England,  2 
Bingh.  393;  Albert  v.  Savings  Bank, 
1  Md.  Ch.  407. 

The  fact  that  a  trustee  deposits  a 
check  payable  to  him  as  trustee  in 
his  personal  account  at  a  bank 
where  he  has  no  account  as  trustee 
gives  the  bank  no  reason  to  believe 
that  the  trustee  is  acting  dishonestly, 
and  if  the  trustee  fails  to  account  for 
the  proceeds  of  the  check  the  bene- 
ficiary has  no  remedy  against   the 


bank.    Batchelder  v.  Bank,  188  Mass. 
25. 

Where  a  deed  of  trust  gives  to  the 
trustee  the  power  to  "  sell  and  con- 
vey in  fee  simple  the  whole  or  any 
part  of  the  trust  estate — provided, 
however,  that  the  principal  of  the 
estate  shall  not  become  impaired  or 
encumbered "  the  trustee  has  no 
power  to  pledge  a  mortgage  belong- 
ing to  the  estate  as  security  for  a  loan ; 
and  if  he  does  so  and  embezzles  the 
proceeds,  the  pledgee  of  the  mort- 
gage will  be  compelled  to  reassign  it 
to  the  trust  estate.  Kenworthy  v. 
Levi,  214  Pa.  235. 

1  4  De  G.,  F.  &  J.  208.  See  the  re- 
marks on  this  case  in  Cave  v.  Cave,  15 
Ch.  D.  646. 

2  Fidelity  Mutual  Life  Ins.  Co,  v. 
Clark,  203  U.  S.  64. 


412 


NOTICE. 


[part  II. 


priority  in  equity  as  well  as  at  law,  according  to  the  maxim  that 
where  equities  are  equal  the  law  will  prevail.*  It  is  also  equally 
well  settled  that  where  the  purchaser  without  notice  does  not 
acquire  the  legal  title  at  the  time  of  his  purchase,  but  subse- 
quently gets  it,  he  is  entitled  to  avail  himself  of  it  as  a  defence 
to  an  equity,  provided  he  does  not,  by  that  act,  become  a  party 
to  a  breach  of  trust; '  because,  as  the  equities  of  both  parties  are 
equal,  there  is  no  reason  why  the  purchaser  should  be  deprived 
of  the  advantage  he  may  obtain  at  law  by  superior  activity  and 
diligence.^  This  is  the  common  doctrine  of  the  tabula  in  nau- 
fragio.^  The  same  rule  is  likewise  applied  not  only  to  cases  in 
which  the  subsequent  purchaser  actually  gets  in  the  legal  title, 
but  also  to  those  in  which  he  has  a  superior  right  to  call  for  it. 
Thus,  where  there  are  two  encumbrances  on  an  estate  of  which 
the  legal  title  is  outstanding  in  a  third  party,  and  the  holder  of 
the  outstanding  legal  title  declares  himself  a  trustee  for  the  sec- 
ond encumbrance,  such  a  declaration  (unless  circumstances  oc- 
curred to  alter  the  rule)  would  operate  to  give  the  second  priority 
over  the  first. ^ 

Second.  The  holder  of  an  equitable  title  may  avail  himself  of 
want  of  notice  as  a  defence,  and  he  may  do  this  even  when  the 
plaintiff  is  the  holder  of  the  legal  title  who  is  seeking  the  benefit 
of  an  auxiliary  equitable  remedy.  For  example,  in  Basset  v. 
Nosworthy,^  which  is  the  leading  authority  upon  the  subject, 


1  Ante,  p.  62.  See  Pilcher  v.  Raw- 
line,  L.  R.  7  Ch.  259;  Snell's  Eq.  20. 

2  Saunders  v.  Dehew,  2  Vern.  271; 
Harpham  v.  Shacklock,  19  Ch.  D. 
207.  See  Central  Trust  Co.  v.  West 
India  Imp.  Co.,  169  N.  Y.  314,  which 
seems  to  establish  an  exception. 

3  Snell's  Eq.  20. 

4  Phillips  V.  Phillips,  4  De  G.,  F.  & 
J.  218;  Blackwood  v.  London  Char- 
tered Bank  of  .\ustraha,  L.  R.  5  P. 
C.  Ill;  Bates  v.  Johnson,  Johns. 
314;  Taylor  v.  Russell  [1891],  1  Ch. 
27.  See,  also,  Fitzsimmons  v.  Ogden, 
7  Cranch,  2,  18;  Zollman  v.  Moore, 
21  Gratt.  313;  Campbell  v.  Bracken- 
ridge,  8  Blackf.  471;  Gibbler  v.  Trim- 
ble, 14  Ohio,  423;  Osborn  v.  Carr,  12 
Conn.  195,  208;  Carroll  v.  Johnston, 
2  Jon.  Eq.  120;  Baggarly  v.  Gaither, 


Id.  80;  Leach  v.  Ansbacher,  55  Pa. 
85;  Carlisle  v.  Jumper,  81  Ky.  282. 

5  Wilmot  V.  Pike,  5  Hare,  14; 
Snell's  Equity,  21;  Ex  -parte  Knott, 
11  Ves.  609. 

6  2  Lead.  Cas.  Eq.  1.  This  doc- 
trine is  recognized  in  Bellas  v.  Mc- 
Carty,  10  Watts,  13,  and  Rhines  v. 
Baird,  41  Pa.  265,  where  the  ruling  in 
Chew  V.  Barnet,  11  S.  &  R.  389;  Reed 
V.  Dickey,  2  Watts,  459,  and  Kramer 
V.  Arthurs,  7  Pa.  165,  was  disap- 
proved. .\  similar  conclusion  was 
reached  in  Union  Canal  Co.  v.  Young, 
1  Whart.  431.  See,  also.  Wood  v. 
Mann,  2  Sumn.  316.  In- other  cases, 
however,  a  different  rule  has  been 
laid  down.  See  Snelgrove  v.  Snel- 
grove,  4  Dess.  274;  Jones  v.  ZoUi- 
coffer,  2  Taylor,  214;  Blake  v.  Hey- 


CH.  III.]  NOTICE.  413 

an  heir-at-law  claiming  under  the  legal  title  filed  a  bill  against 
a  purchaser  from  a  devisee  to  compel  discovery  of  a  revocation 
of  the  will.  The  defendant  pleaded  a  purchase  for  value  with- 
out notice  and  the  plea  was  allowed.  The  same  principle  was 
recognized  by  Lord  Eldon  in  Wallwyn  v.  Lee/  and  by  Lord  St. 
Leonards  in  Joyce  v.  De  Moleyns,^  and  must  now  be  considered 
as  well  established  in  equity  jurisprudence  in  England.' 

But  to  this  doctrine  there  is  one  exception,  viz.,  that  where 
the  bill  is  filed  simply  to  enforce  a  legal  right  through  an  equi- 
table remedy,  a  plea  of  purchase  for  value  will  be  overruled. 
This  distinction  was  established  in  the  case  of  Williams  v. 
Lambe,^  where  a  widow  filed  a  bill  against  a  purchaser  from 
her  husband,  claiming  dower.  The  defendant  pleaded  a  pur- 
chase without  notice  of  the  vendor  being  married ;  but  the  plea 
was  overruled  by  Lord  Thurlow.  This  .case  and  that  of  Collins 
V.  Archer  ^  were  supposed  to  be  at  variance  with  the  decisions  in 
Wallwyn  v.  Lee  and  Joyce  v.  De  Moleyns,  referred  to  above; 
but  it  was  subsequently  pointed  out  in  Phillips  v.  Phillips  ^  that 
Lord  Thurlow 's  ruling  was  not,  when  properly  considered,  a  con- 
tradiction of  the  rule  that  the  holder  of  an  equitable  title  may  set 
up  the  want  of  notice  as  a  defence,  but  that  the  rule  itself  was 
never  applicable  to  cases  in  which  Courts  of  Chancery  afford  legal 
relief  concurrently  with  courts  of  law.  The  same  doctrine  had, 
indeed,  been  explained  by  the  Master  of  the  Rolls,  Sir  John 
Romilly,  in  Finch  v.  Shaw,^  where  the  distinction  was  said  to  be 
this:  If  the  suit  be  for  the  enforcement  of  a  legal  claim,  then,  al- 
though the  court  may  have  jurisdiction,  it  will  not  interfere  as 
against  a  purchaser  for  value  without  notice,  but  will  leave  the 
parties  to  law;  if,  on  the  other  hand,  the  legal  title  is  perfectly 
clear,  and  attached  to  that  legal  title  there  is  an  equitable  remedy 
which  can  only  be  enforced  in  chancery,  there  is  no  case  in  which 
the  court  will  refuse  to  enforce  the  equitable  remedy  which  is 
incidental  to  the  legal  title.  The  bill  for  discovery  in  Basset  v. 
Nosworthy  and  the  bill  for  dower  in  Williams  v.  Lambe  are 
illustrations  of  these  two  classes  of  cases.     In  the  former  the 

ward,  1   Bailey's  Eq.  208;    Larrowe  3  Phillips  v.  Phillips,  4  De  G.,  F.  & 

V.   Beam,   10  Ohio,  448.     See,  also,  J.  218. 

Boone  v.  Chiles,  10  Pet.  177;  Sumner  "  3  Bro.  C.  C.  264. 

1'.    Waugh,    56    111.    5.U ;    California  &  1  Russ.  &  My.  284. 

Fruit  Ass'n  v.  Stelling,  141  Cal.  719.  « 4  De  G.,  F.  &  J.  208. 

1  9  Ves.  24.  ^  19  Bcav.  .500;  affirmed  in  5  H.  L. 

2  2  J.  &  L.  374.  Cas.  905,  nom.  Colyer  v.  Finch. 


414 


NOTICE. 


[part  II. 


plea  of  purchase  for  value  was  good  as  against  the  discovery,  the 
jurisdiction  of  the  court  being  auxiliary;  in  the  latter  it  was  not 
good  as  against  the  relief,  the  jurisdiction  being  concurrent.^ 

Third.  Where  the  legal  estate  is  neither  in  the  plaintiff  nor 
defendant,  and  neither  has  a  right  to  call  it  in,  but  it  is  out- 
standing in  a  third  party,  encumbrancers  will  take  in  order  of 
time,  and  the  defence  of  a  purchase  for  value  cannot  be  made.^ 
But  the  equities  must  be  equal,  otherwise  the  rule  qui  prior  est 
tempore  potior  est  jure  will  not  prevail.^ 

265.  Extent  of  protection  afforded  by  want  of  notice. 

One  who  has  notice  of  a  prior  equity  msiy  resist  its  enforce- 
ment under  cover  of  want  of  notice  in  his  immediate  vendor.'* 
Thus,  if  A.  were  the  holder  of  an  estate  which  was  subject  to  a 
secret  trust,  which  was  known  to  C,  and  A.  were  to  convey  the 
estate  to  B.,  an  innocent  purchaser  who  had  no  notice,  and  B. 
shoidd  afterwards  sell  to  C,  the  latter  could  protect  himself 
against  the  claims  of  A.'s  cestui  que  trust,  by  setting  up  the  want 
of  notice  in  B.,  his  immediate  vendor.  The  reason  of  this  rule 
is  obvious.  It  is  designed  not  for  the  benefit  of  C,  but  for  that 
of  B.  For  it  might  be  possible  that  after  the  sale  to  B.  something 
would  occur  which  would  })ut  all  the  world  upon  notice  of  the 
trust,  and  no  one  could  thereafter  take  the  estate  unaffected  with 
notice.  The  estate,  therefore,  would  be  locked  up  in  B.'s  hands, 
and  rendered  unsalable,  because  he  could  never  find  a  purchaser 
who  was  free  from  notice.^  To  protect  B.,  therefore,  the  rule 
has  been  laid  down  as  above  set  forth.^    If,  however,  in  the  case 


1  Phillips  V.  Phillips,  supra. 

2  Phillips  V.  Phillips  supra ;  Ford  i'. 
White,  16  Beav.  120;  Downer  r.  The 
Bank,  39  Vt.  25. 

3  Rice  V.  Rice,  2  Drew.  73;  Farrand 
V.  Yorkshire  Banking  Company,  40 
Ch.  D.  188;  Lloyds  Bank,  Limited,  v. 
Bullock  [1896],  2  Ch.  197;  Judson  v. 
Corcoran,  17  How.  612. 

4  Bracken  i\  Miller,  4  W.  &  S. 
102;  Church  v.  Church,  25  Pa.  278; 
Fletcher  v.  Peck,  6  Cranch,  87;  Dana 
V.  Newhall,  13  Mass.  498;  Rutgers  v. 
KingsUind,  7  N.  J.  Eq.  17S,  658;  Hal- 
stead  V.  The  Bank  of  Kentucky,  4 
J.  J.  Marsh.  554;  Mitchell  v.  Aten,  37 
Kan.  33;  Moore  v.  Allen,  26  Colo.  197; 


English  V.  Lindley,  194  HI.  181; 
Nickerson  v.  Mass.  Title  Ins.  Co.,  178 
Mass.  308;  note  to  Basset  v.  Nos- 
worthy,  2  Lead.  Cas.  Eq.  33  (4th 
Am.  ed.). 

5  "  It  is  a  well-settled  rule  of  this 
court  that  a  man  who  is  a  purchaser 
with  notice  himself  from  a  person 
who  bought  without  notice,  may 
protect  himself  under  the  first  pur- 
chaser. The  reason  is  to  prevent  a 
stagnation  of  property,  and  because 
the  first  purchaser,  being  entitled  to 
hold  and  enjoy,  must  be  equally  en- 
titled to  sell."  Bumpus  v.  Platner, 
1  Johns.  Ch.  213,  by  Chancellor  Kent. 

«  See  Lowther  v.  Carlton,   2  Atk. 


CH.  III.] 


NOTICE. 


415 


above  put,  B.  should  sell  again  to  A.,  or  the  estate  should  after- 
wards by  mesne  conveyances  come  into  A.'s  hands,  the  trust 
would  re-attach ;  the  reason  of  this  being  that  it  would  be  a  gross 
outrage  to  allow  the  man  who  had  originally  perpetrated  the 
wrong  to  reap  the  benefit  of  it,  while,  at  the  same  time,  it  would 
be  no  hardship  upon  B.,  for  only  one  customer  (A.)  would  thus  be 
removed  from  the  market.^ 

A  person  who  has  no  notice  will  not  be  affected  by  notice  on 
the  part  of  his  immediate  vendor.  Whenever  the  chain  of  con- 
veyances reaches  an  innocent  purchaser  for  value,  who  takes 
the  legal  title,  the  doctrine  of  notice  no  longer  applies.^ 

266.  English  rule  that  payment  of  purchase-money  and 
acquisition  of  legal  title  must  both  precede  notice. 

Important  questions  in  the  doctrine  of  notice  grow  out  of  the 
consideration  of  the  time  when  the  notice  is  given. 

It  is  clear  that  notice  ought  to  l)ind  if,  at  the  time  it  is  given, 
or  presumed  to  be  given,  the  purchaser  has  neither  acquired 
the  legal  title  nor  parted  with  his  money.  It  is  equally  clear 
that  notice  after  conveyance  and  payment  of  the  consideration 
is  too  late.  What  then  is  the  rule  in  the  two  intermediate  cases 
which  sometimes  occur,  viz.,  first,  where  a  vendee  gets  the 
legal  title,  but  notice  comes  to  him  before  he  pays  the  purchase- 
money;  and,  second,  where  he  pays  the  purchase-money  in 
ignorance  of  the  prior  equity,  but  is  affected  with  knowledge 
of  the  same  before  obtaining  his  deed? 

In  England  the  rule  is  that,  in  order  to  protect  a  purchaser, 
the  transaction  must  be  complete  in  both  particulars  before  no- 
tice; that  is  to  say,  the  vendee  must  actually  have  received  his 
conveyance  and  paid  his  money.  If  he  has  done  only  one  of 
these,  his  right  will  be  inferior  to  the  right  of  the  holder  of  the 
prior  equity.  He  must,  to  be  protected,  hold  the  legal  title, 
and  have  paid  the  full  amount  of  the  purchase-money.^ 


242;  Harrison  v.  Forth,  Prec.  Ch.  15; 
Fletcher  v.  Peck,  6  Cranch,  133; 
Boynton  v.  Rees,  8  Pick.  329;  Mott  n. 
Clark,  9  Pa.  399;  Curtis  v.  Lunn,  6 
Munf.  42;  Lindsey  v.  Rankin,  4  Bibb, 
482;  Perry  on  Trusts,  §§  222,  830. 

•See  Church  v.  Ruhind,  (34  Pa. 
444;  Ashton's  Appeal,  73  Id.  153; 
Troy  City  Bank  v.  Wilcox,  24  Wis. 


()71;  Williams  v.  Williams,  US  Mich. 
477;  Hoye  v.  Kalashian,  22  R.  I.  101; 
Kennedy  v.  Daly,  1  Sch.  &  Lef.  379; 
Perry  on  Trusts,  §  222;  Bourquin  v. 
Bourquin,  120  Ga.  115. 

2  Demarest  v.  Wynkoop,  3  Johns. 
Ch.  147. 

•■<  See  note  to  Basset  v.  Nos worthy, 
2  Lead.  Cas.   Eq.   *77;  TourvUle  v. 


416 


NOTICE. 


[part  II. 


267.  Rule  in  United  States  ;  protection  pro  tanto. 

In  the  United  States,  also,  the  rule  is  the  same  in  cases  in 
which  the  legal  title  is  conveyed,  but  the  purchase-money  not 
paid  at  the  time  of  the  notice.^  In  such  a  case  the  purchaser 
has  no  equity  for  he  has  lost  nothing;  and  even  if  he  has  given 
security  for  the  purchase-money  he  could  not  lose,  because  he 
could  set  up  the  failure  of  title  as  a  defence.^ 

But  when  there  has  been  a  payment  of  purchase-money  in 
part  or  in  whole,  and  notice  then  intervenes  before  the  acquisi- 
tion of  the  legal  title,  the  English  rule  is  followed  in  the  courts 
of  some  of  the  United  States,^  but  in  others  a  different  doctrine 
is  held.'*  Thus,  in  Pennsylvania  and  some  other  states,  a  pay- 
ment of  part  of  the  purchase-money  is  a  protection  pro  tanto.^ 

268.  Notice  actual  and  constructive  ;  actual  notice  either 
direct  or  presumptive. 

Notice  is  either  actual  or  constructive ;  and  actual  notice  may 
be  again  divided  into  direct  or  positive  notice,  and  indirect,  im- 
plied, or  presumptive  notice.^ 

Actual  notice  consists  either  in  direct  information  of  a  fact 
brought  directly  home  to  a  party ;  or  in  a  knowledge  of  circum- 
stances leading  to  a  knowledge  of  such  fact7  It  embraces  all 
degrees  and  grades  of  evidence,  from  the  most  direct  and  posi- 
tive proof  to  the  slightest  circumstance  from  which  knowledge 


Naish,  3  P.  Wms.  307;  Story  v. 
Windsor,  2  Atk.  630;  Wigg  v.  Wigg, 
1  Id.  384;  2  Sug.  V.  &  P.  523;  Perry 
on  Trusts,  §  221.  See,  however,  2 
Dart's  V.  &  P.  670. 

1  See  Blanchard  v.  Tyler,  12  Mich. 
339;  Palmer  v.  Williams,  24  Id.  333; 
Murray  v.  Ballou,  1  Johns.  Ch.  566; 
Patten  v.  Moore,  32  N.  H.  382;  Mc- 
Bee  V.  Loftis,  1  Strob.  Eq.  90;  Perry 
on  Trusts,  §  221. 

2  Perry  on  Trusts,  §  219. 

3  See  Penfield  v.  Dunbar,  64  Barb. 
239;  Keys  v.  Test,  33  111.  316;  Haugh- 
wout  V.  Murphy,  21  N.  J.  Eq.  118; 
note  to  Basset  v.  Nosworthy,  2  Lead. 
Cas.  Eq.  75. 

*  Notes  to  Basset  v.  Nosworthy,  2 
Lead.  Cas.  Eq.  75. 
*See  Youst  v.  Martin,  3  S.  &  R. 


423;  Bellas    v.   McCarty,  10   Watts, 
13;  Juvenal  v.  Jackson,  14  Pa.  519 
McFadyen   v.  Masters,   11   Okla.  16 
Bender   v.    Kingman,    64   Neb.    766 
Frost  V.  Beekman,  1  Johns.  Ch.  288 
Florence  Sewing  Machine  Co.  v.  Zieg- 
ler,  58  Ala.  221;  Paul  v.  Fulton,  25 
Mo.   156;   Davis   v.  Ward,   109  Cal. 
186.  See,  also,  Fraim  v.  Frederick,  32 
Tex.  294;  Sparks  v.  Taylor,  99  Tex. 
411. 

6  This  division  is  suggested  by  the 
language  of  the  court  in  Flagg  v. 
Mann,  2  Sumn.  556.  See,  also,  Ket- 
tlewell  V.  Watson,  21  Ch.  D.  704; 
Cave  V.  Cave,  15  Id.  643. 

7  Mayor  v.  Williams,  6  Md.  235; 
Harper  v.  Ely,  56  111.  194;  Knapp  v. 
Bailey,  79  Me.  195-  Pope  v.  Nichols, 
61  Kan.  230. 


CH.  III.] 


NOTICE. 


417 


may  be  inferred.^  In  the  first  case,  the  notice  is  direct  or  posi- 
tive; in  the  second  it  is  indirect,  iniphed,  or  prCvSumptive. 

Constructive  notice  is  notice  which  is  fastened  upon  a  party 
by  an  irrefutable  presumption  of  law,  deduced  from  facts  and 
circumstances,  that  knowledge  nmst  of  necessity  have  been 
communicated  to  the  party — the  facts  and  circumstances  which 
gave  rise  to  the  presumption  requiring  proof — but  the  presump- 
tion itself,  when  the  facts  are  once  established,  being  incapable 
of  being  disproved.^  It  is  a  legal  inference  from  established 
facts,  which,  like  other  legal  presumptions,  does  not  admit  of 
dispute;  or,  to  use  the  definition  usually  given,  it  is  no  more 
than  evidence  of  notice,  the  presumptions  of  which  are  so  vio- 
lent that  the  court  will  not  allow  even  of  its  being  controverted.^ 

The  difference  between  implied  or  presumptive  notice  (which 
is  here  treated  as  a  division  of  actual  notice)  and  constructive 
notice  is  that  the  former  is  a  presumption  or  inference  of  fact, 
which  is  capable  of  being  explained  or  contradicted;  while  the 
other  is  a  conclusion  of  law  which  is  not  permitted  to  be  con- 
troverted. To  illustrate  the  difference  between  the  two:  Any- 
thing which  puts  a  person  upon  inquiry  is  said  to  amount  to 
notice.^  He  is  bound,  if  circumstances  point  out  a  path  of  in- 
vestigation, to  follow  it.  If  he  makes  no  inquiries,  the  pre- 
sumption is  that  he  has  improperly  turned  away  from  a  knowl- 
edge of  the  true  state  of  the  case,  and  he  is,  therefore,  presumed 
as  a  conclusion  of  fact  to  know  what  he  might  have  informed 
himself  of.  But  if  he  does  inquire,  and  does  not,  after  an  honest 
effort,  succeed  in  discovering  the  fact,  the  presumption  of  knowl- 
edge will  be  rebutted.  On  the  other  hand,  notice  by  the  regis- 
tration of  a  deed  is  an  example  of  constructive  notice.  Of  this 
registry,  a  party  is,  under  the  recording  acts,  bound  to  take 
notice ;  his  knowledge  is  a  conclusion  of  law ;  it  is  a  presumption 
juns  et  de  jure,  and,  as  such,  is  incapable  of  being  refuted.^ 


1  Williamson  v.  Brown,   15  N.  Y. 

2  Taylor  v.  London  &  County 
Banking  Co.  [1901],  2  Ch.  231-240; 
Hewitt  V.  Loosemore,  9  Hare,  449- 
455. 

••'  2  Sug.  V.  &  P.  755  (528,  8th  Am. 
ed.).  See,  also,  Bell  v.  Twilight,  2 
Fost.  500;  Rogers  v.  Jones,  8  N.  H. 
270;  Williamson  v.  Brown,  15  N.  Y. 

27 


354;  Creeson  v.  Miller,  2  Watts,  274; 
McCray  v.  Clark,  82  Pa.  461;  notes 
to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas. 
Eq.  152,  157. 

^Gollober  (;.  Martin,  33  Kan.  252; 
Trustees  of  Schools  v.  Sheik,  119  111. 
579;  Conn.  Life  Ins.  Co.  v.  Smith,  117 
Mo.  261;  Pocahontas  Tanning  Co.  i'. 
Boom  Co.,  63  W.  Va.  685. 

5  See  Kettlewell  v.  Watson,  21  Ch. 


418 


NOTICE. 


[part  II. 


Actual  notice  must  consist  in  certain  and  definite  information, 
as  distinguisiied  from  vague  rumors;  ^  and,  as  a  general  rule,  it 
may  be  stated  that  notice  must  come  from  some  person  who  is 
interested  in  the  property,  for  a  purchaser  is  not  bound  to  at- 
tend to  statements  by  mere  strangers.^  But  as  actual  notice  can- 
not mean  anything  more  or  higher  than  direct  knowledge,  it 
is  difficult  to  see  how  a  party  can  disregard  information  con- 
cerning a  title  as  to  which  he  is  in  negotiation,  even  though  com- 
ing from  a  stranger;^  and  hence  it  has  been  stated  to  be  the 
rule,  and  this  statement  has  been  approved  by  judicial  authority, 
that  notice  "need  not  come  from  a  party  or  his  agent,  but  it  is 
sufficient  if  it  be  derived  aliunde,  provided  it  be  of  a  character 
Ukely  to  gain  credit."  '' 

Notice  to  an  agent  is  notice  to  the  principal ;  ^  and  it  is  to  be 
considered  (as  far  as  the  principal  is  concerned)  as  constructive 
notice;  because  the  principal  and  agent,  in  matters  within  the 
scope  of  the  latter's  authority,  are  regarded,  in  the  eye  of  the 
law,  as  one.^ 

There  is  no  question  as  to  the  general  rule.    Whether  it  is 


D.  704;  Bailey  v.  Galpin,  40  Minn. 
319;  Wood's  Appeal,  92  Pa.  379  (for 
a  case  in  which  the  purchaser  was 
held  not  to  have  been  put  upon  in- 
quiry); and  Ellis's  Appeal,  8  W.  N.  C. 
538  (for  one  in  which  the  purchaser 
was  put  upon  inquiry).  See,  also, 
Ryman  v.  Gerlach,  153  Pa.  197; 
Westinghouse  v.  German  Nat.  Bk., 
188  Id.  630;  Shattuck  v.  Am.  Cement 
Co.,  205  Id.  209;  Earl  of  Sheffield  ?'. 
London  Joint  Stock  Bank,  13  App. 
Cas.  333,  and  City  of  Trinidad  v. 
Milwaukee  and  Trinidad  Sm.  &  Ref. 
Co.,  27  U.  S.  App.  469. 

1  Williamson  v.  Brown,  15  N.  Y. 
354;  Weare  v.  Williams  (Iowa),  52 
N.  W.  Rep.  328. 

2  Butler  V.  Stevens,  26  Me.  484;  The 
City  Council  v.  Page,  1  Spear's  Eq. 
159;  Kerns  v.  Swope,  2  Watts,  75; 
Woods  V.  Farmere,  7  Id.  382;  Lamont 
V.  Stinson,  5  Wis.  443;  Churcher  v. 
Guernsey,  39  Pa.  86;  Bernhart  v. 
Greenshields,  28  Eng.  L.  &  Eq.  77. 

3  Ripple  V.  Ripple,  1  Rawle,  386; 


Wilcox  V.  Hill,  11  Mich.  256;  Knapp 
V.  Bailey,  79  Me.  195;  American  note 
to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas. 
Eq.  146. 

4  Story's  Eq.  §400  b;  Butcher  v. 
Yocum,  61  Pa.  170;  MuUiken  v.  Gra- 
ham, 72  Id.  484;  Rupert  v.  Mark,  15 
111.  542;  Cox  r.  Milner,  23  Id.  476; 
Curtis  V.  Mundy,  3  Mete.  407. 

5  See  Columbian  Bank's  Estate,  147 
Pa.  435;  and  compare  Johnston  r. 
Laflin,  103  U.  S.  800.  As  to  husband 
and  wife,  see  Hamblet  v.  Harrison, 
80  Miss.  118. 

6  Hough  r.  Richardson,  3  Story, 
660;  Bowman  v.  Wathen,  1  How.  195; 
Astor  V.  Wells,  4  Wheat.  466;  Wester- 
velt  V.  Haff,  2  Sandf.  Ch.  98;  Watson 
V.  Wells,  5  Conn.  468;  Bracken  r. 
Miller,  4  W.  &  S.  102;  Jones  v.  Bam- 
ford,  21  la.  217;  Kennedy  v.  Green, 
3  Myl.  &  K.  699,  719;  Williams  v. 
WilHams,  17  Ch.  D.  437;  Kettlewell 
V.  Watson,  21  Id.  685;  Hallows  v. 
Lloyd,  39  Id.  686. 


CH.  III.]  NOTICE.  419 

to  be  applied  to  a  case  in  which  knowledge  is  sought  to  be  im- 
puted, when  the  agent  is  himself  the  author  of  the  fraud,  is 
a  question  as  to  which  there  has  been  a  conflict  of  opinion.  The 
authorities  will  be  found  collected  in  Gunster  v.  The  Scranton 
Illuminating  Heat  and  Power  Co.,^  and  the  conclusion  was 
there  reached  that  in  such  a  case  the  principal  could  not  be 
charged  with  notice.  Moreover  where  the  agent  acts  not  only 
for  his  principal  but,  also,  for  himself  individually,  and  his  in- 
terest or  conduct  is  such  as  to  render  it  certain  that  he  would 
not  make  any  disclosure  to  his  principal,  the  same  conclusion 
was  reached.^ 

It  has  been  held  in  many  cases  that  the  notice  to  the  agent, 
in  order  to  affect  the  principal,  must  be  in  the  same  transaction 
in  which  the  former  is  acting  on  behalf  of  the  latter.^  Thus,  a 
client  (it  has  been  said)  could  not  be  affected  with  notice  of  a 
fact  of  which  his  counsel  has  obtained  information  when  acting 
on  behalf  of  another  party.^  But  the  rule  is  now  otherwise  in 
England ;  and  the  change  was  adopted  in  the  case  of  The  Dis- 
tilled Spirits,  in  the  Supreme  Court  of  the  United  States.^ 

Care  should  be  taken,  however,  not  to  extend  the  rule  to 
cases  to  which  it  is  inapplicable.  It  has,  therefore,  been  properly 
held  that  knowledge  which  comes  to  an  officer  of  a  corporation 
in  his  private  transactions  and  in  matters  beyond  the  range  of 
his  official  duties,  is  not  to  be  treated  as  notice  to  the  corporation.'* 
And,  on  a  similar  principle,  it  was  decided  in  an  Alabama  case 
that  information  acquired  by  an  agent  many  years  prior  (o  his 

1  181  Pa.  327,  approved  in  United  53  111.  198;  Keenan  v.  The  Missouri 
Security  Co.  v.  Cent.  Nat.  Bank,  185  Ins.  Co.,  42  la.  126;  Bierce  v.  The 
Id.  600.  To  the  same  effect  are  Red  Bluff  Hotel,  31  Cal.  160;  notes  to 
Smith  V.  Boyd,  162  Mo.  146;  State  Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq. 
Savings   Bank  v.   Montgomery,    126  170. 

Mich.    327;    Scotch    Lumber   Co.    v.  *  Warner  v.  Hall,  53  Mich.  372. 

Sage,  132  Ala.  598,  and  Express  Co.  5  n  Wall.  366.     Sec,  also.  Dresser 

v.  Walker,  9  N,  Mex.  456.  v.   Norwood,   17  C.   B.   (n.   s.)   466; 

2  Kennedy  v.  Green,  3  Mylnc  &  K.  Hart  v.  The  Farmers'  Bank,  :>3  Vt. 
699;  Innerarity  v.  Bank,  139  Mass.  252;  Willard  v.  Denise,  50  N.  J.  Eq. 
.332;  Bank  of  Overton  v.  Thompson,  482;  2  Sug.  V.  &  P.  532  (8th  Am.  ed.), 
56  C.  C.  A.  554.  and  Schwind  v.  Boyce,  94  Md.  510. 

•i  Warrick  v.  Warrick,  3  Atk.  294.  «  Benton  v.  Ger.  Am.  Nat.  Bank, 

See,  also,  Bracken  v.  Miller,  4  W.  &  S.  122    Mo.    332.      See,    also,    Interna- 

111;    Smith's    Appeal,    47    Pa.    128;  tional,  etc.,  Ass'n  t;.  Watson,  158  Ind. 

Houseman  v.  The  Building  Associa-  508. 
tion,  81  Id.  262;  Roberts  ;;.  Fleming, 


420 


NOTICE. 


[part  II. 


acting  in  that  capacity  for  another,  cannot  be  binding  upon  the 
latter.' 

Possession  is  notice.  This  doctrine  is  incidentally  mentioned 
by  Blackstone.  "The  trustee,"  he  says,  in  explaining  the  law 
of  uses  and  trusts,  "is  considered  as  merely  the  instrument  of 
conveyance,  and  can  in  no  shape  affect  the  estate,  unless  by  ahen- 
ation  for  a  valuable  consideration  to  a  purchaser  without  notice, 
which,  as  the  cestui  que  trust  is  generally  in  possession  of  the  land,  is 
a  thing  that  can  rarely  happen."  ^  In  other  words,  it  is  taken 
for  granted,  in  the  sentence  just  quoted,  that  as  against  an  equi- 
table owner  in  possession,  no  purchaser  can  be  heard  to  allege 
that  he  acquired  the  legal  title  without  knowledge  of  the  rights 
of  the  equitable  owner;  or,  more  briefly,  Blackstone  assumes 
it  to  be  settled  law  that  notice  is  imputed  by  possession.^ 

The  modem  English  doctrine  upon  the  subject  may  be  stated 
to  be  that  where  a  man  is  of  right,  and  de  facto,  in  possession  of  a 
corporeal  hereditament,  he  is  entitled  to  impute  knowledge  of 
that  possession  to  all  who  deal  for  any  interest  in  the  property 
conflicting  or  inconsistent  with  the  title,  or  alleged  title,  under 
which  he  is  in  possession,  or  which  he  has  a  right  to  connect  with 
his  possession  of  the  property;  and  further,  that  a  man  who 
knows,  or  who  cannot  be  heard  to  deny  that  he  knows,  another  to 
be  in  possession  of  certain  property,  cannot  for  any  civil  purpose, 
as  against  him  at  least,  be  heard  to  deny  having  thereby  notice 
of  the  title  under  which,  or  in  respect  of  which,  he  is  and  claims 
to  be  in  that  possession.  These  are  the  propositions  which  were 
laid  down  by  Lord  Justice  Knight  Bruce  in  Holmes  v.  Powell,'* 
and  were  said  by  that  Judge  to  be  based  upon  the  language  of 
Lord  Eld  on. °  They  are  thoroughly  sustained  by  the  EngHsh 
authorities.* 

In  the  United  States,  also,  the  doctrine  was  recognized  at  an 
early  day.    In  Billington  v.  Welch  ^  the  existence  of  the  general 


1  Pcarce  v.  Smith,  126  Ala.  116. 

2  2  Black.  Com.  ^41. 

M'litcraft  v.  Ins.  Co.,  211  Pa.  114. 
■«8  De  G.,  M.  &  G.  572,  580-581. 

5  In  Allen  v.  .\nthony,  1  Meriv.  282. 

6  Smith  V.  Low,  1  Atk.  489;  Taylor 
r.  Stibbert,  2  Ves.  Jr.  4:^7;  Daniels  v. 
Davison,  16  Id.  249;  Bailey  v.  Rich- 
ardson, 9  Hare,  7)^4;  Cavander  v.  Bul- 
teel,  L.  R.  9  Ch.  79;  Wilson  v.  Hart,  1 


Id.  467;  note  to  Le  Neve  v.  Le  Neve, 
2  Lead.  Cas.  Eq.  63.  See  Allen  v. 
Seckham,  11  Ch.  D.  l^H),  and  Hunt  v. 
Luck  [1901],  1  Ch.  45.  Tenant's 
occupation  affects  purchaser  with 
notice  of  Ms  rights,  but  not  with 
those  of  his  lessor. 

'  5  Biimey,  129.  See  Wilcox  v. 
Leominster  Bank,  43  Minn.  541. 
The  possession  must  be  a  present  one. 


II 


CH.  III.] 


NOTICE. 


421 


rule  was  assumed  as  entirely  well  settled,  and  its  application 
was  refused  only  an  account  of  the  particular  circumstances  of 
the  case;  and  in  all  the  Federal  and  State  Courts  where  the 
question  has  been  raised,  it  has  been  treated  as  one  of  the  funda- 
mental principles  by  which  the  acquisition  and  enjoyment  of  real 
property  are  controlled.^ 

Notice   by   possession   has   been   termed   m   many  decisions 
"constructive"   notice;-  and   the   English  doctrine  as  stated 


A  former  possession  will  not  suffice, 
although  there  still  be  evidence  of  it 
on  the  land.  Roussain  v.  Norton,  53 
Minn.  560.  The  possession,  more- 
over, must  be  inconsistent  with  the 
title  of  the  record  owner.  Jerome  v. 
Carbonate  Nat.  Bank,  22  Colo.  37. 

»  Warren  v.  Richmond,  53  111.  22; 
Hubbard  v.  Long,  20  la.  149;  Sears  v. 
Munson,  23  Id.  380;  Glidewell  v. 
Spaugh,  26  Ind.  319;  Kelley  v.  Stan- 
bery,  13  Ohio,  426;  McKenzie  v.  Per- 
rill,  15  Id.  162;  Gouverneur  v.  Lynch, 
2  Paige  Ch.  300;  Chesterman  v.  Gard- 
ner, 5  Johns.  Ch.  32;  McKecknie 
V.  Hoskins,  23  Me.  230;  Knapp  v. 
Bailey,  79  Id.  195;  Rupert  v.  Mark,  15 
111.  542;  Prettyman  v.  Wilkey,  19  Id. 
241;  Keys  v.  Test,  33  Id.  316;  Cabeen 
V.  Breckenridge,  48  Id.  91;  Robbins  v. 
Moore,  129  Id.  30;  Disbrow  v.  Jones, 
Harr.  48;  Bayard  v.  Norris,  5  Gill. 
483;  Webber  v.  Taylor,  2  Jon.  Eq.  9; 
Money  v.  Ricketts,  62  Mi.ss.  209; 
Bratton  v.  Rogers,  Id.  281;  Rorer 
Iron  Co.  V.  Trout,  83  Va.  397;  Secu- 
rity Trust  Co.  V.  Wilhamette  Co.,  99 
Cal.636;  Stonesiferv.  Kilburn,  122  Id. 
659;  Krider  v.  Lafferty,  1  Whart.  303; 
Sailor  v.  Hertzog,  4  Id.  259;  Mee- 
han  V.  Williams,  48  Pa.  238;  Landes 
V.  Brant,  10  How.  375;  Hughes  v. 
United  States,  4  Wall.  232;  Bol- 
land  V.  O'Neal,  81  Minn.  15;  Kent 
V.  Dean,  128  Ala.  600;  Ramirez  v. 
Smith,  94  Tex.  184;  Scott  v.  Lewis,  40 
Oreg.  37;  Austin  v.  Southern  B.  &  L. 
Ass'n,  122  Ga.  439;  Shaffer  v.  Detie, 
191  Mo.  377;  Squires  v.  Kimball,  208 


Mo.  110;  Oberlender  v.  Butcher,  67 
Neb.  410;  Thalheimer  v.  Lockert,  76 
Ark.  25;  and  in  this  connection,  note 
Dodge  V.  Davis,  85  Iowa,  79.  In 
Anderson  v.  Brinser,  129  Pa.  376,  a 
mortgagee  was  charged  with  notice 
of  the  existence  of  an  option  to  biij' 
in  favor  of  a  lessee  in  possession,  antl 
this  ruling  is  in  accordance  with  the 
doctrine  under  consideration.  It  has 
been  held,  however,  by  the  same 
court,  that  the  rule  would  not  ap- 
ply as  between  the  original  parties, 
i.  e.,  as  between  vendor  and  vendee, 
Wertheimer  v.  Thomas,  168  Pa.  168; 
but  this  ruling  would  not  seem  to 
be  free  from  doubt.  Leach  v.  Ans- 
bacher,  55  Id.  85,  was  decided  under 
special  circumstances,  and  is  not  to 
be  regarded  as  a  departure  from  the 
general  rule. 

Possession  of  tenants  is  construc- 
tive notice  of  the  legal  or  equitable 
rights  of  the  landlord  under  whom 
they  hold  and  to  whom  they  pay  the 
rent  even  though  the  legal  title 
stands  in  another's  name.  Gallagher 
V.  Northrup,  215  HI.  563. 

2  Patten  v.  Moore,  32  N.  H.  384; 
Williams  v.  Sprigg,  6  Ohio  St.  585; 
Gouverneur  v.  Lynch,  2  Paige  Ch. 
300;  Sailor  v.  Hertzog,  4  Whart.  265; 
Jaques  v.  Weeks,  7  Watts,  275;  Hack- 
with  V.  Damron,  1  Mon.  238;  Scrog- 
gins  V.  McDougald,  8  Ala.  385; 
Holmes  v.  Deppert,  122  Mich.  275; 
note  to  Le  Neve  v.  Le  Neve,  2  Lead. 
Cas.  Eq.  182;  Tillotson  v.  Mitchell. 
Ill  111.  518;  Farmers'  Nat.  Bank  v. 


422  NOTICE.  [part  II. 

above  would  seem  to  treat  notice  by  possession  as  a  presump- 
tion of  law.  But,  on  the  other  hand,  this  presumption  has  been 
held  capable  of  being  rebutted,^  and  the  better  opinion  would, 
therefoi-e,  seem  to  be  that  notice  by  possession  is  to  be  considered 
as  implied  or  presumptive  notice  merely.^ 

209.  Constructive  notice ;  Vice-Cliaucellor  Wigram's  di- 
vision. 

Constructive  notice  has  been  already  defined,  although  the 
courts  have  not  unfrequently  hesitated  to  say  with  precision 
in  what  it  shall  consist;  and  the  tendency  in  modern  decisions 
is  to  limit  the  sphere  of  its  operation.^ 

The  definition  stated  in  a  preceding  paragraph  has  been  given 
with  not  a  little  diffidence,  as  it  seems  presumptuous,  in  the 
highest  degree,  to  attempt  to  define  what  constructive  notice 
is,  when  great  authorities  have  endeavored  to  do  so  without 
success.^ 

The  doctrine  of  constmctive  notice  is  wholly  equitable,  and 
differs  from  the  inference  of  knowledge,  which  is,  not  unfre- 
quently, drawn  at  common  law.  Such  common-law  inference 
is  one  by  which  the  existence  of  actual  knowledge  is  inferred; 
whereas  constructive  notice  proceeds  upon  the  theory  of  imputed 
knowledge  solely.^ 

Vice-Chancellor  Wigram,  in  Jones  v.  Smith, '^  divided  con- 
structive notice  into  two  classes,  as  follows — first,  cases  in  which 
the  party  charged  has  had  actual  notice  that  the  property  in 
dispute  was  in  fact  charged,  encumbered,  or  in  some  way  af- 
fected, and  the  court  has,  thereupon,  bound  him  with  construc- 
tive notice  of  facts  and  instruments  to  a  knowledge  of  which  he 
would  have  been  led  by  an  inquiry  after  the  charge,  encum- 
brance, or  other  circumstance  affecting  the  property,  of  which 
he  had  actual  notice;  and,  second,  cases  in  which  the  court  has 
been  satisfied,  from  the  evidence  before  it,  that  the  party  charged 

Sperling,  113  Id.  273;  Carter  v.  Chal-  Stevens  v.  Castel,  63  Mich.  Ill;  Levy 

len,  83  Ala.   135;  Smith  v.  Schvveig-  v.  Holberg,  67  Miss.  526. 

erer,  129  Ind.  363;  Ross  v.  Hendrix,  3  /«  re  Hall,  37  Ch.  D.  712. 

110  N.  C.  403.  *  See  2  Sug.  V.  &  P.  470. 

1  Leach  v.  Ansbacher,  55  Pa.  85.  5  gee  the  language  of  Lord  Esher, 
See  Cornell  i-.  Maltby,  165  \.  Y.  557.  M.  R.,  in    English    &  Scottish  Merc. 

2  See  Flagg  v.  Mann,  2  Sumn.  556;  Inv.  Co.  v.  Brunton  [1892],  2  Q.  B. 
Williamson  v.  Brown,  16  N.  Y.  355;  708. 

Bank  of  Mendocino  v.  Baker,  82  Cal.  e  i  Hare,  43.    See  Reed  v.  Gannon, 

114;  Emeric  v.  Alvarado,  90  Id.  444;       50  N.  Y.  345. 


CH.  III.] 


NOTICE. 


423 


had  designedly  abstained  from  inquiry,  for  the  very  purpose 
of  avoiding  notice.^  To  these  two  classes  may,  perhaps,  be  added 
a  third,  viz.,  cases  in  which  the  party  charged  is  presumed  by  the 
policy  of  the  law,  or  by  virtue  of  the  provisions  of  some  statute, 
to  be  cognizant  of  some  proceedings  pending,  or  act  done,  in  re- 
lation to  the  property  in  cjuestion,  whereby  its  title  is  affected. 

Of  the  first  of  these  classes  of  constructive  notice  an  instance 
will  be  found  in  Penny  v.  Watts,  a  decision  which  has  carried 
the  doctrine  under  consideration  very  far,  and  which  has,  there- 
fore, been  criticised  l)y  great  authority,  but  which  is,  neverthe- 
less, with  this  qualification,  a  good  illustration  of  the  doctrine 
itself.2 

Of  the  second  class,  Birch  v.  Ellames  ^  (where  a  mortgagee, 
who  had  notice  of  the  deposit  of  title  deeds,  but  avoided  inquir- 
ing the  purpose  for  which  it  had  been  made,  was  held  to  be  af- 
fected with  notice  of  that  purpose)  is  an  example. 

It  is,  moreover,  perfectly  well  settled  that  a  purchaser  will 
have  constructive  notice  of  anything  which  appears  in  any  part 
of  the  deeds  or  instruments  which  prove  and  constitute  the  title 
purchased,  and  is  of  such  a  nature  as,  if  brought  directly  to  his 
knowledge,  would  amount  to  actual  notice. "*  And  where  it  is 
the  duty  of  a  person  to  demand  the  production  of  title  deeds, 


iSee  Babcock  v.  Lisk,  57  111.  .329; 
Boxheimer  v.  Gunn,  24  Mich.  .379; 
Oliver  v.  Sanborn,  60  Id.  346;  Fouse 
V.  Gilfillan,  45  W.  Va.  213. 

2  Penny  v.  Watts,  1  MacN.  &  G. 
150.  In  this  case,  where  a  man  who 
claimed  under  a  marriage  settlement 
as  a  purchaser  without  notice,  had 
notice  previous  to  his  marriage  that  a 
legatee  had  given  up  her  legacy  un- 
der a  will  in  favor  of  the  intended 
wife,  to  whom  the  estate  upon  which 
it  was  charged  belonged,  and  which 
was  comprised  in  the  subsequent 
marriage  settlement,  and  had,  also, 
notice  that  the  intended  wife  had  in 
consequence  devised  to  the  legatee 
a  portion  of  the  estate,  and  that  the 
legatee  was  dead;  it  was  held  to  be 
notice,  as  leading  to  an  inquiry,  of  an 
equitable  reversionary  title  in  the 
husband  of  the  legatee  under  a  sub- 


sequent agreement  with  the  lady, 
the  devisor,  before  her  marriage,  to 
convey  the  devised  estate  to  him. 
See  2  Sug.  V.  &  P.  550  (8th  Am.  ed.). 

;!  2  Anstr.  427.  See  Earl  of  Shef- 
field ('.  London  Joint  Stock  Bank,  13 
App.  Cas.  333;  Simmons  v.  London 
Joint  Stock  Bank  [1891],  1  Ch.  295, 
and  Columbian  Bank's  Estate,  147 
Pa.  435. 

*  American  note  to  Le  Neve  v.  Le 
Neve,  2  Lead.  Cas.  Eq.  168,  169; 
George  v.  Kent,  7  Allen,  16;  Monte- 
fiore  V.  Brown,  7  H.  L.  Cas.  241 ;  Land 
Co.  V.  Hill,  87  Tenn.  589.  See  Brown- 
back  V.  Ozias,  117  Pa.  87,  where  the 
recital  of  a  charge  was  held  sufficient, 
under  the  circumstances,  to  put  the 
purchaser  upon  inquiry;  and  Wert- 
heimer  v.  Thomas,  168  Id.  168,  a 
case,  however,  which  is  not  free  from 
doubt. 


424 


NOTICE. 


[part  II. 


he  will  be  held  to  have  notice  of  all  the  facts  of  which  the  pro- 
duction would  have  informed  hini.^ 

There  is,  however,  a  distinction  between  deeds  which  obvi- 
ously must  affect  the  property  and  deeds  which  may  or  may  not 
affect  it.  If  a  case  falls  within  the  first  category,  a  person  must 
look  at  the  deed,  although  he  may  be  told  that  it  does  not  affect 
the  property;  and  if  he  does  not  look  at  it,  he  will  be  taken  to 
have  constructive  notice  of  its  contents.  If  a  case  is  brought 
within  the  second  category,  and  the  person  is  told  that  the  deed 
does  not  affect  the  property,  he  may  take  that  statement,  and 
cannot  be  held  to  have  had  constructive  notice  of  its  contents.^ 

270.  Notice  by  registration. 

The  third  class  of  cases  includes  those  in  which  notice  is 
given  by  registration  of  conveyances,  and  by  lis  pendens — the 
former  depending  upon  statutory  regulations — the  latter  upon 
a  general  principle  of  law  which  discourages  ahenation  of  the 
subject  of  a  suit  pending  litigation. 

The  doctrine  of  constructive  notice  under  the  recording  acts 
is  one  which,  of  course,  depends,  l)oth  in  England  and  in  this 
country,  upon  statute;  and,  stated  in  general  terms,  it  is  simply 
this:  that  where  an  instrument,  which  is  entitled  to  be  recorded, 
is  duly  executed  and  acknowledged,  and  is  recorded  in  the  proper 
territorial  limits,  such  a  registration  is  notice  of  the  contents  of 
the  instrument,^  and  of  all  legal  and  equitable  rights  and  titles 
created  thereby,  to  any  person  claiming  from  or  under  the  same 
grantor,  by  virtue  of  any  title  which  existed  in  him  at  the  date 
of  the  duly  recorded  conveyance."    And  it  may  be  further  stated 


1  Peto  V.  Hammond,  .30  Beav.  509; 
Kellogg  V.  Smith,  26  X.  Y.  18.  See 
Sug.  v.  &  P.,  Chap.  XXIV.,  where 
the  whole  subject  of  notice  is  dis- 
cussed at  length,  and  the  cases  ex- 
amined. 

2  See  English  and  Scottish  Merc. 
Inv.  Co.  V.  Brunton  [1892],  2  Q.  B. 
700,  and  the  opinion  of  Lord  Esher, 
M.  R.,  on  p.  711,  from  which  the 
statement  in  the  text  is  taken.  The 
distinction  between  deeds  which 
" must  affect "  and  those  which  "may 
affect,"  is  fully  explained  in  that 
opinion. 


3  See  Bancroft  v.  Consen,  13  Allen, 
50.  And  it  has  been  held  that  the 
loss  or  destruction  of  the  book  makes 
no  difference.  Sharp  v.  Am.  Free- 
hold &  Mfg.  Co.^  95  Ga.  415;  Tucker 
V.  Shaw,  158  111.  326. 

*  4  Kent's  Com.  174,  175  (11th  ed.) 
2  Sug.  V.  &  P.  539  (8th  Am.  ed.). 
Subsequent  purchasers  will  be  bound 
to  take  notice,  although  the  record 
and  deed  lodged  for  record  be  de- 
stroyed, as  was  the  case  in  the  Chi- 
cago fire.  Franklin  Savings  Bank  v. 
Taylor,  131  111.  376;  Tucker  v.  Shaw, 
158  111.  326. 


CH.  III.] 


NOTICE. 


425 


that  actual  knowledge  on  the  part  of  a  subsequent  grantee,  of 
the  existence  of  a  prior  unrecorded  deed,  will  be  equivalent,  so 
far  as  he  is  concerned,  to  registry,  and  will  be  so  treated  both  at 
law  and  in  equity;  but  whether  or  not  the  same  effect  will  be 
given  to  merely  constructive  notice  of  a  prior  unrecorded  deed, 
is  a  question  upon  which  the  authorities  in  the  different  states 
are  not  uniform. 


271.  What  registration  will  operate  as  notice. 

It  will  be  observed,  by  referring  to  the  above  general  state- 
ment, that  constructive  notice  arises  from  the  recording  of  those 
instruments  only  which  are  entitled  to  be  registered.  Thus 
(for  example),  where  personal  property  is  conveyed  by  a  regis- 
tered deed,  the  registry  is  not  of  itself  constructive  notice  of  the 
transfer,  for  transfers  of  such  property  are  not  (generally  speak- 
ing) entitled  to  be  registered.  And  this  was  held  to  be  the  case 
even  where  the  deed  conveyed  real  as  well  as  personal  property, 
and  was,  therefore,  a  recordable  instrument  as  a  conveyance  of 
realty.^  If,  therefore,  the  deed  is  one  which  is  not  required  or  au- 
thorized by  law  to  be  recorded,  the  mere  act  of  putting  it  on 
record  cannot  affect  subsequent  {)urchasers  with  notice  of  its 
contents  or  of  any  rights  claimed  under  it.  And  the  same  rule 
will  apply  to  cases  in  which  deeds  are  not  executed  or  acknowl- 
edged in  the  manner  and  form  to  entitle  them  to  be  record ed.- 

Conveyances,  to  operate  by  way  of  constructive  notice,  must 
also  be  recorded  within  the  territorial  limits  prescribed  by  the 
statute.  Therefore,  where  a  deed  is  recorded  in  the  wrong 
county  or  in  the  wrong  state,  the  record  cannot  operate  as 
notice.^  Nor  is  the  record  notice  to  any  one  except  those  who 
claim  title  under  the  same  grantor.'' 


1  Pitcher  v.  Barrows,  17  Pick.  361. 
See  Boggs  v.  Varner,  6  W.  &  S.  469; 
Beeman  v.  Cooper,  64  Vt.  305. 

2  See,  upon  this  subject,  Stevens  v. 
Morse,  47  N.  H.  532;  Sumner  v. 
Rhodes,  14  Conn.  135;  Isharri  v.  Ben- 
nington Iron  Co.,  19  Vt.  230;  Green 
V.  Drinker,  7  W.  &  S.  440;  4  Kent's 
Com.  174  (Uth  ed.);  Lessee  of  Heis- 
ter  V.  Fortner,  2  Binn.  40;  Parkist 
V.  Alexander,  1  Johns.  Ch.  394;  Gra- 
ham V.  Samuel,  1  Dana,  166;  Thomas 
V.  Grand  Gulf    Bank,    9    Sm.    &    M. 


201;  Brown  v.  Budd,  2  Carter  (Ind.) 
442;  Work  v.  Harper,  24  Miss.  517; 
Parret  v.  Shaubhut,  5  Minn.  323. 
See,  however.  Woods  v.  Garnett,  72 
Miss.  78. 

sAstor  V.  Wells,  4  Wheat.  446; 
Kerns  v.  Swope,  2  Watts,  75;  Hund- 
ley V.  Mount,  8  Sm.  &  M.  387;  Lewis 
V.  Baird,  3  McLean,  56;  Crosby  v. 
Huston,   1  Tex.  203. 

*Stuyvesant  v.  Hall,  2  Barb.  Ch. 
151;  Lightner  v.  Mooney,  10  Watts, 
412;  Woods  v.  Farmere,  7  Id.  382; 


426 


NOTICE. 


[part  II. 


'212.  Effect  of  actual  notice  of  unregistered  conveyance. 

It  was  decided  in  the  year  1747,  in  the  leading  case  of  Le 
Neve  V.  Le  Neve,*  that  a  registered  will  be  postponed  to  an  un- 
registered conveyance,  if  the  purchaser  under  the  former  has 
notice  at  the  time  of  the  existence  of  the  latter.  This  decision 
has  been  the  subject  of  much  regret  in  England,  as  it  has  been 
supposed  (and  with  no  little  justice)  to  infringe  upon  the  pohcy  of 
the  Registration  Acts;  but  it  has,  nevertheless,  been  followed  in  a 
number  of  authorities ;  and  the  law  must  be  considered  as  settled 
in  accordance  with  that  decision.^  A  similar  view  of  the  law 
has  been  adopted  in  the  United  States;  and  the  general  rule 
is  held  to  be  that  actual  knowledge  of  a  prior  unrecorded  deed 
will  operate  to  postpone  the  subsequent  purchaser.^ 

273.  Constructive  notice  of  same. 

But  whether  the  same  effect  is  to  be  given  to  constructive  no- 
tice, is  a  question  upon  which  the  authorities  are  not  uniform. 
In  England  it  is  now  held  that  constructive  notice  of  an  un- 
registered conveyance  will  be  enough  to  postpone  a  subsequent 
purchaser,  although  he  has  registered  his  deed.'*  Similar  deci- 
sions have  been  made  in  many  of  the  United  States.  Thus,  in 
New  York  and  in  Maryland,  it  has  been  held  that  constructive 
notice  is  enough;  and  in  Pennsylvania  it  is  decided  that  oi)on 


Bates  V.  Norcross,  14  Pick.  224; 
(ieorge  v.  Wood,  9  Allen,  80;  Crockett 
V.  Maguire,  lU  Mo.  M;  Tilton  v. 
Hunter,  24  Me.  29;  Leiby  v.  Wolf, 
10  Ohio,  83. 

1  Amb.  436;  3  Atk.  646;  1  Ves.  64; 
2  Lead.  Cas.  Eq.  35  (4th  Eng.  ed.). 

2  See  Wyatt  v.  Harwell,  19  Ves. 
439;  Chadwick  v.  Turner,  34  Beav. 
634;  L.  R.  1  Ch.  310;  Neve  v.  Pen- 
nell,  2  H.  &  M.  170;  Ford  v.  White, 
16  Beav.  120;  Benham  v.  Keane,  1 
Johns.  &  H.  685;  3  De  G.,  F.  &  J.  318. 

3  Jackson  v.  Leek,  19  Wend.  339; 
Porter  v.  Cole,  4  Me.  20;  Rogers  v. 
Jones,  8  N.  H.  264;  Garwood  v.  Gar- 
wood, 8  N.  J.  Eq.  193;  Hamilton  v. 
Nutt,  34  Conn.  501;  Owens  v.  Mil- 
ler, 29  Md.  144;  Farnsworth  i'. 
Childs,  4  Mass.  637;  Martin  v.  Sale, 
Bailey's  Eq.  1;  Speer  v.  Evans,  47 
Pa.  141;  Nice's  Appeal,  54  Id.  200; 


Pike  V.  Armstead,  1  Dev.  Eq.  110; 
Vanmeter  v.  McFaddin,  8  B.  Mon. 
442;  Ohio  Ins.  Co.  v.  Ledyani,  S 
Ala.  866;  Gibbes  v.  Cobb,  7  Uicli. 
Eq.  54;  Mitchell  v.  Aten,  37  Kan.  33; 
Wilkins  v.  McCorkle,  112  Tenn.  688; 
American  notes  to  Le  Neve  v.  Le 
Neve,  2  Lead.  Cas.  Eq.  183.  The 
record  of  a  mortgage  upon  the  land 
given  by  a  person  not  in  pos.ses.sion 
is  not  constructive  notice  of  an  un- 
recorded de^d  from  the  holder  of  the 
record  title  to  the  mortgagor  where 
the  former  does  not  appear  to  be  a 
party  to  the  mortgage.  Booker  v. 
Booker,  208  111.  529. 

4  Wormald  r.  Maitland,  35  L.  J. 
Ch.  (n.  s.)  69;  13  W.  Rep.  832;  In 
re  Allen,  1  Ir.  Eq.  455.  See,  how- 
ever, Chadwick  v.  Turner,  L.  R.  1 
Ch.  310;  Agra  Bank  v.  Barry,  6  Ir. 
Eq.  128;  7  App.  Cas.  135. 


CH.  III.] 


NOTICE. 


427 


and  notorious  possession  (which  can  operate  only  as  constructive 
notice  if  the  subsequent  grantee  is,  in  fact,  ignorant  of  such 
possession)  is  sufficient  notice  of  an  unrecorded  deed.^  But  even 
in  these  states  the  decisions  upon  this  point  have  not  been  uni- 
form ; '  while  in  many  other  states  of  the  Union  a  contrary  doc- 
trine has  been  held/*  It  is,  therefore,  impossible  to  say  that  any 
uniform  rule  upon  the  subject  exists  on  this  side  of  the  Atlantic. 
In  some  states,  as  in  Maine  and  Massachusetts,  actual  notice 
is  required  by  statute.** 

274.  Xw  pendenft. 

Before  leaving  the  subject  of  notice  it  will  be  desirable  to 
say  a  few  words  upon  the  doctrine  of  lis  pendens,  which  may 
be  conveniently  adverted  to  in  this  connection,  although,  as  will 
be  seen  presently,  it  is  one  which  does  not,  strictly  speaking,  I'est 
upon  the  general  doctrine  of  notice. 

The  doctrine  of  lis  pendens  is  one  by  which  a  suit  in  chancery, 
duly  ^  prosecuted  in  good  faith,  and  followed  by  a  decree,  is  con- 
structive notice,  to  every  person  who  acquires  from  a  defendant 
pendente  lite  an  interest  in  the  subject-matter  of  the  litigation, 
of  the  legal  and  equitable  rights  of  the  plaintiff,  as  charged  in 
the  bill  and  established  by  the  decree.*^  It  is  a  doctrine  of 
courts  of  equity  of  ancient   origin;^  and,  in   this  country,  is 


1  Tuttle  V.  Jackson,  6  Wend.  21.3; 
Price  V.  McDonald,  1  Md.  414;  Krider 
V.  Lafferty,  1  Whart.  .303;  Randall  ;;. 
Silverthorn,  4  Pa.  173;  Patton  v.  The 
Borough,  40  Id.  206;  and  in  CaUfor- 
nia,  see  Mahoney  v.  Middleton,  41 
Cal.  41;  Talbert  v.  Singleton,  42  Id. 
390.  Possession  was  also  held  to  be 
notice  in  Buck  v.  Holloway,  2  J.  J. 
Marsh.  178;  Hopkins  v.  Garrard,  7 
B.  Mon.  312;  Colby  i;.  Kenniston,  4 
N.  H.  262;  Morrison  v.  Kelly,  22  111. 
610;  Landes  v.  Brant,  10  How.  348; 
Oliver  v.  Sanborn,  60  Mich.  346. 

2  Scott  V.  Gallagher,  14  S.  &  R 
333;  Boggs  v.  Varner,  6  W.  &  S 
469;  Dey  v.  Dunham,  2  Johns.  Ch 
183;  Ohio  Ins.  Co.  v.  Ross,  2  Md 
Ch.  35;  Gill  v.  McAttee,  Id.  268. 

3  Harris   v.   Arnold,    1   R.   I.    125 
Norcross  v.   Widgery,   2  Mass.   599; 
Bush  V.  Golden,  17  Conn.  594;  Finch 


V.  Woods,  113  Ga.  996;  Frothingham 
V.  Stacker,  11  Mo.  77;  Fleming  v. 
Burgin,  2  Ired.  Eq.  584;  Flagg  v. 
Mann,  2  Sumn.  491;  Emeric  c.  Ai- 
varado,  90  Cal.  444. 

4  See  Glass  v.  Hulbert,  102  Mass. 
.34;  Boggs  V.  Anderson,  50  Me.  161;  2 
Sug.  V.  &  P.  545,  note  (Sth  Am.  ed.). 

5  The  suit  must  be  prosecuted  with 
reasonable  diligence.  Taylor  v.  Car- 
roll, 89  Md.  32;  Tinsley  v.  Rice,  105 
Ga.  205. 

8  Haughwout  V.  Murphy,  22  N.  J. 
Eq.  531,  544.  The  suit  must  be  pend- 
ing; after  decree  it  is  not  constructive 
notice.  Worsley  v.  Scarborough,  ;'. 
Atk.  392;  Hill  on  Trustees,  511;  Sug. 
V.  &  P.  760,  note  a. 

7  See  Sorrell  v.  Carpenter,  2  P. 
Wms.  482;  Digs  v.  Boys,  Toth.  187; 
2  Sug.  V.  &  P.  533,  note  (Sth  Am. 
ed.). 


428 


NOTICE. 


[part  II. 


founded  on  Chancellor  Kent's  opinion  in  Murray  v.  Ballou,  de- 
cided in  1815.'  It  is  based  upon  the  theoiy  that  legal  proceed- 
ings during  their  continuance  are  publicly  known  throughout  the 
realm;  '^  and  while  in  some  few  cases  in  this  country  it  has  been 
rejected,^  it  has  been  very  generally  ado]jted  throughout  tiie 
United  States,  both  in  courts  of  law  and  in  those  of  ecjuity."* 

The  principal  qualifications  of  this  doctrine  are  that  the  spe- 
cific property  must  be  pointed  out  and  sufficiently  described  by 
the  proceedings;  that  it  is  notice  only  in  relation  to  that  prop- 
erty ;  ^  and  that  it  applies  only  to  purchasers  from  a  party  to  the 
suit  of  the  thing  in  controversy,  it  has  no  application  to  a  third 
person  whose  interest  subsisted  before  the  suit  was  commenced, 
but  was  of  a  contingent  and  conditional  character,  and  it  oper- 
ates in  favor  of  the  complainant  only.^ 

In  England  it  is  held  that  the  doctrine  applies  only  to  interests 
in  realty.'  In  the  United  States,  however,  it  has  been  ap))lied 
to  certain  classes  of  personalty,  such  as  stocks  and  non-negotiable 
securities ;  but  its  application  to  movable  personal  property  and 
to  negotiable  instruments  has  been  denied.** 


1  1  Johns.  Ch.  566. 

2  Adams's  Doct.  of  Eq.  157.  See 
Cook  V.  Mancius,  5  Johns.  Ch.  85. 

3  Newman  v.  Chapman,  2  Rand.  93; 
City  Council  v.  Page,  Spear's  Eq.  159. 
See  King  v.  Bill,  28  Conn.  593. 

*  Murray  v.  Lylburn,  2  Johns.  Ch. 
441;  Watlington  v.  Howley,  1  Dess. 
167;  Ovvings  v.  Myers,  3  Bibb,  279; 
Wickliffe  v.  Breckinridge,  1  Bush, 
427;  Chaudron  v.  Magee,  8  Ala.  570; 
Tongue  v.  Morton,  6  Har.  &  J.  21; 
Green  v.  White,  7  Blackf.  242;  Haven 
V.  Adams,  8  -Vllen,  363;  Baird  v. 
Baird,  Phil.  Eq.  317;  Edwards  v. 
Bank.smith,  35  Ga.  213;  Cooley  v.' 
Brayton,  16  la.  10;  Parsons  v.  Hoyt, 
24  Id.  154;  Scarlett  v.  Gorham,  28  111. 
319;  Jackson  v.  Warren,  32  Id.  331; 
Snively  ».  Hitechew,  59  Pa.  49;  Hurl- 
butt  V.  Butenop,  27  Cal.  50;  Turner 
V.  Haupt,  53  N.  J.  Eq.  526;  O'Connor 
V.  O'Connor,  45  W.  Va.  354;  Powell 
V.  National  Bank  of  Commerce,  19 
Colo.  App.  57;  Taylor  v.  U.  S.  Bldg. 
Ass'n,    110   Ky.   84.     A  lis  pendens 


affects  not  only  a  purchaser  from  one 
of  the  parties  to  the  suit  but  also 
those  who  hold  by  conveyances  un- 
der him.  Bridger  v.  Bank,  126  Ga. 
821. 

»  Edmunds  v.  Crenshaw,  1  McCord's 
Ch.  252;  Lewis  v.  Mew,  1  Strob.  Eq. 
180;  Green  v.  Slayter,  4  Johns.  Cli. 
38;  Miller  v.  Sherry,  2  Wall.  238; 
Green  v.  Rick,  121  Pa.  130. 

«  Hopkins  v.  McLaren,  4  Cow.  678; 
Clarkson  v.  Morgan,  6  B.  Mon.  441; 
Parks  v.  Jackson,  11  Wend.  442; 
French  v.  The  Loyal  Company,  5 
Leigh,  627;  Diamond  v.  Lawrence 
County'  37  Pa.  356;  Hokanson  v. 
Gunderson,  54  Minn.  499;  Norris  r. 
He,  152  111.  190;  Boykin  v.  Jones,  67 
Ark.  571;  Geishaker  v.  Pancoast,  57 
N.  J.  Eq.  60;  Noyes  v.  Crawford,  US 
la.  15. 

7  Wigram  v.  Buckley  [1894],  3  Ch. 
483. 

8  See  the  language  of  Chancellor 
Kent  in  Murray  v.  Lylburn,  2  Johns. 
Ch.   441.   as    to   which   Mr.   Justice 


CH.  III.] 


NOTICE. 


429 


The  doctrine  of  lis  pendens  had  formerly  been  regarded  as 
depending  upon  the  general  doctrine  of  notice;  but  in  Bellamy 
V.  Sabine.^  the  subject  was  elaborately  examined  by  the  English 
Court  of  Appeals  in  chancery,  and  the  conclusion  reached  that 
the  true  theory  of  lis  pendens  is  that  it  ]3roceeds  from  the  gen- 
eral rule  which  forbids  alienation  of  contested  property  pending 
litigation.  The  reason  of  the  rule  is  the  necessity  for  putting 
an  end  to  litigation  which  would  become  interminable,  if  the 
subject-matter  thereof  could  be  transferred  as  often  as  the  par- 
ties chose,  from  time  to  time.  This  view  of  the  doctrine  has 
been  adopted  in  New  Jersey." 


275.  Plea  of  bonafde  purchaser  for  value. 

It  has  been  already  explained  that  the  only  persons  who  are 
entitled  to  avail  themselves  of  want  of  notice  as  a  defence  are 
bona  fide  purchasers  for  a  valuable  consideration.^ 

In  other  words,  if  a  man  wishes  to  hold  property  as  against 
some  other  person  who  has  a  prior  equitable  right  thereto,  he 
must  show  that  he  is,  in  the  first  place,  a  purchaser,  as  distin- 
guished from  a  mere  vohmteer;  in  the  second  place,  that  he  is 
an  honest,  not  a  fraudulent  purchaser;  and,  lastly,  that  he  has 
bought  for  a  valuable  consideration. 

On  the  other  hand,  a  purchaser  who  possesses  these  requisites 
is  entitled  to  protect  himself  against  any  discovery  in  aid  of  the 
adverse  claim.  Ordinarily,  as  will  be  seen  hereafter,  a  plaintiff 
in  equity  is  entitled  to  discovery  from  the  defendant — in  other 
words,  the  latter  must  answer  the  bill  of  the  former  under  oath. 
But  to  this  general  rule  there  are  some  exceptions,  among  them 
being  this — that  the  defendant  is  not  bound  to  disclose  any  im- 
perfection in  his  title  if  he  has  honestly  and  in  good  faith  paid 
for  the  estate  in  order  to  make  himself  the  owner  of  it. 


Bradley  observed  (in  County  of  War- 
ren V.  Marcy,  97  U.  S.  106),  "Here 
we  have  the  whole  law  on  the  sub- 
ject. Sub.sequcnt  cases  have  only  car- 
ried it  out  and  applied  it." 

1  1  De  G.  &  J.  566;  Colonial  Bank 
V.  Hepworth,  36  Ch.  D.  36. 

2  Haughwout  V.  Murphy,  22  N.  J. 
Eq.  544;  Geishaker  v.  I'ancoast,  57 
Id.  60.  See,  also,  Newman  v.  Chap- 
man, 2  Rand.  93,  decided  by  the 
Court  of  Appeals  in  Virginia  in  1823, 


and  Youngman  v.  Elmira  Railroad 
Co.,  65  Pa.  287;  Bridger  v.  Bank,  126 
Ga.  821. 

^  To  invoke  the  protection  it  is 
essential  that  the  purchaser  should 
acquire  some  interest  in  the  prop- 
erty; one  who  purchases  at  a  fore- 
closure sale  under  a  void  mortgage 
acquires  no  interest  or  title  and  can- 
not be  a  bona  fide  purchaser  for 
value  without  notice.  Shook  v. 
Southern  Bldg.  Assn.,  140  Ala.  575. 


430  NOTICE.  [part  II. 

The  principle  of  this  plea  was  said  by  Lord  Eldon  to  be  this : 
"  I  have  honestly  and  bona  fide  paid  for  this  estate,  in  order 
to  make  myself  the  owner  of  it,  and  you  shall  have  no  informa- 
tion from  me  as  to  the  perfection  or  imperfection  of  my  title 
until  you  deliver  me  from  the  peril  in  which  you  state  I  have 
placed  myself  in  the  article  of  purchasing  bona  fideJ'  ^  Such  a 
purchaser,  when  he  has  once  put  in  that  plea,  may  be  interro- 
gated and  tested  to  any  extent,  as  to  the  valuable  consideration 
which  he  has  given,  in  order  to  show  the  bona  fides  or  mala  fides 
of  his  purchase,  and  also  the  presence  or  absence  of  notice ;  but 
when  once  he  has  gone  through  that  ordeal  successfully,  then 
the  court  has  no  jurisdiction  whatever  to  do  anything  more  than 
to  let  him  depart  in  possession  of  the  estate,  right,  or  advantage 
which  he  has  obtained,  whatever  that  may  be.^  In  the  United 
States,  generally,  this  position  may  be  assumed  by  way  of  an- 
swer, instead  of  plea. 

2 76.  Can  be  used  by  the  holder  of  an  eqnitable  title. 

It  is  now  settled  in  England,  after  some  conflict  of  authority, 
that  the  plea  of  a  bona  fide  purchaser  for  value  is  available  for 
the  protection  of  an  ecjuitable  as  well  as  of  a  legal  title.  The 
qualifications  which  are  to  be  attached  to  this  doctrine,  and  the 
extent  to  which  it  has  been  followed  in  the  United  States,  have 
been  already  explained.^ 

A  judgment-creditor,  and  a  creditor  deriving  title  under  levy 
of  execution,  are  not  purchasers  in  the  sense  of  being  entitled 
to  avail  themselves  of  this  plea."* 

277.  Doctrine  of  seeing  to  the  application  of  purchase- 
money. 

Under  the  general  doctrine  of  notice  arises  the  rule  that  pur- 
chasers from  a  ti'ustee  for  sale  must  see  to  the  application  of 
the  purchase-money.  It  is  a  general  duty  of  trustees  to  use 
the  trust  property  for  the  ])urposes  of 'the  trust  alone;  any  other 
use  of  it  is  a  breach  of  trust,  and  is  unlawful. 

1  Walhvyn  v.  I.oe,  i)  Vps.  24.  See  ^  Whitworth  v.  Gaugain,  .3  Hare, 
Sug.  ^'.  ct  P.,  Chap.  XXV.,  where  416;  Hart  v.  Fanners'  Bank,  83  Vt. 
the  subject  is  discussed,  and  Story's  252;  Finch  v.  Winchelsea,  1  P.  Wms. 
Eq.  Pleading,   §  603.  277;  Ludwig  v.  Highley,  5  Pa.  132; 

2  Pilchcr  /'.  Ruvlins,  L.  R.  7  Ch.  Reed's  Appeal,  13  Id.  478;  Morris  v. 
269;  per  Lord  Justice  James.  See,  Ziegler,  71  Id.  450,  Badeley  v.  Con- 
also,  Zollman  v.  Moore,  21  Gratt.  329.  solidated  Bank,  34  Ch.  D.  536. 

3  Ante,  §  264. 


CH.  III.]  NOTICE.  431 

It  follows  that,  if  trust  property  is  sold,  it  must  be  sold  for  the 
benefit  of  the  cestui  que  trust;  in  other  words,  the  sale  must  enure 
to  his  advantage,  and  the  proceeds  must  be  applied  in  accord- 
ance with  the  design  of  the  trust.  It  follows,  moreover,  that  a 
disposition  of  the  property  for  any  other  consideration  than  one 
moving  to  the  trust  estate,  is  a  fraud  upon  the  trust ;  and  that  no 
person  who  acquires  the  trust  property  under  such  circumstances 
with  notice  of  the  trust,  can  claim  to  hold  it  free  and  discharged 
from  the  rights  of  the  cestui  que  trust. 

Equity,  for  the  protection  of  the  interests  of  the  cestui  que 
trust,  has  engrafted  a  still  further  doctrine — which  is,  that  in 
order  to  prevent  any  fraud  from  being  practised  upon  the  rights 
of  the  beneficial  owner,  the  purchaser  from  the  trustee  shall  not 
hold  the  property  freed  from  the  trust,  unless  the  purchase- 
money,  after  it  is  paid  to  the  trustee,  is  duly  appropriated  by 
him  to  the  purposes  of  the  tmst.  This  doctrine  is  known  in 
equity  as  the  duty  on  the  part  of  the  vendee  of  "  seeing  to  the 
application  of  the  purchase-money;"  and  it  may  be  stated,  very 
generally,  in  these  terms,  "that  whenever  the  trust  or  charge  is 
of  a  defined  or  limited  nature,  the  purchaser  must  himself  see 
that  the  purchase-money  is  applied  to  the  proper  discharge  of  the 
trust ;  but  whenever  the  trust  is  of  a  general  or  uncertain  nature, 
he  need  not  see  to  it."  ^ 

Thus,  where  there  was  a  tmst  of  real  estate  to  pay  particular 
or  scheduled  debts,  the  purchaser  was  bound  to  see  to  the  appli- 
cation of  the  purchase-money;  if  the  trust  was  for  the  payment 
of  debts  generally,  the  |)ur('haser  was  not  so  bound. 

The  reason  of  this  distinction  was,  that  the  creator  of  the 
general  trust  must  necessarily  have  intended  that  the  receipt 
of  the  trustee  should  be  a  sufficient  discharge,  and  that  to  hin\ 
alone  should  be  confided  the  duty  and  responsibility  of  a  proper 
disposition  of  the  trust  assets.  If  the  author  of  the  trust  ex- 
pressly said  in  the  instrument  creating  the  same,  that  the  receipt 
of  the  trustee  would  be  sufficient,  the  purchaser  was  not  bound 
to  see  to  the  a])plication  of  the  money;  and  it  was  considenvl 
that  the  same  rule  ought  to  apply  when  the  power  to  give  a 
sufficient  discharge  was  implied.' 


2 


1  See  Clyde  v.  Simpson,  4  Oliio  St.  GGl ;  Elliot  v.  Merryman,  1  Lead.  Cas. 

445;    Curd    7'.    Field,    lO:^    Ky.    29:;;  Eq.  *5!),  and  notes. 

Lewin    on    Trusts,    517-519    el    seq.  2  Lewin,  supra. 
(10th  Eng.  ed.);  Sug.  V.  &  P.  660, 


432  NOTicio.  [part  II. 

Sales  of  personal  property  by  executors  stand  upon  the  same 
footing  as  sales  of  real  estate  under  a  trust  to  pay  debts  gen- 
erally; the  purchaser  is  not  bound  to  see  to  the  application  of 
the  money.  Indeed,  a  purchaser  of  personalty  was  never  bound, 
as  a  general  rule,  to  sec  to  the  application. 

278.  Abolished  in  Euglaud. 

Upon  the  principle  stated  above,  a  number  of  refinements  and 
distinctions  were  engrafted  by  the  English  courts. 

The  doctrine  was,  however,  a  harsh  one,  and  caused  great 
inconvenience;  and  it  has,  after  one  or  two  unsuccessful  at- 
tempts, been  finally  abrogated  in  England  by  a  statute  passed 
in  1859.1 

279.  Of  little  importance  in  the  United  States. 

In  the  United  States  the  docti'ine  never  was  received  with 
any  favor.^  The  distinction  between  trusts  for  the  payment 
of  debts  generally  and  the  payment  of  scheduled  debts  was 
not  recognized;  principally  for  the  reason  that  lands  in  this 
country  are,  as  a  general  rule,  assets  for  the  payment  of  debts ; 
and  that,  therefore,  where  a  general  trust  to  pay  debts  attached 
to  the  whole  realty,  it  brought  the  case  within  the  rule  applica- 
ble to  trusts  for  the  payment  of  debts  generally.  This  tendency 
of  the  American  courts  not  to  adopt  the  doctrine  of  the  neces- 
sity of  seeing  to  the  application  of  the  purchase-money,  has 
been  further  strengthened  by  legislation  in  some  states.^ 

It  must  be  remarked,  however,  that  even  in  the  United  States 
a  purchas(M-  who  colliide.s  with  an  (>xecutor  oi"  trustee  will  be 
held  responsible  for  any  misapplication  of  trust  money  growing 
out  of  the  same  transaction.  But  this  falls  under  a  different 
doctrine,  viz.,  fraud. 

»  22  and  23  Vict,.,  c.  35,  §23.  a-Section    4846    Ky.    Stats.    1903; 

2Redford  v.  Clarke,  100  Va.  115;      Stevens  v.  Smith,  124  Ky.  784. 
Perry  on  Trusts,  §  797. 


CH.  IV.] 


EQUITABLE   ESTOPPEL;   ELECTION. 


CHAPTER  IV. 


EQUITABLE    ESTOPPEL;   ELECTION. 


283. 


284. 


280.  Definition  of  estoppel. 

281.  Different  kinds  of  estoppel;  le- 

gal estoppels  in  pais. 

282.  Equitable  estoppel  or  estoppel 

by  conduct;  founded  on  fraud. 

A  party  may  be  estopped  by  the 
assertion  of  an  untruth.  Con- 
gregation V.  Williams. 

A  party  may  be  estopped  by  the 
concealment  of  the  truth. 
Pickard  v.  Sears. 
285.  Conduct  which  works  an  estop- 
pel must  be  external  to  the 
contract. 

Representations  between  party 
alleging  estoppel  and  party 
estopped. 

Representations  between  party 
alleging  estoppel  and  third 
party. 

Representations  need  not  be 
known  to  be  false  by  party 
making  them. 

Must  operate  to  deceive  the 
party  to  whom  they  are  made. 

290.  Intention   that  conduct  should 

be  acted  on  must  exist. 

291.  Estoppel  must  be  actually  pro- 

duced by  the  conduct. 


286. 


287. 


288. 


289. 


292.  Estoppel  is  limited  to  the  repre- 

sentations made. 

293.  Estoppels  in  the  cases  of  mar- 

ried women  and  infants. 

294.  Estoppels  bind  parties  and  priv- 

ies. 

295.  Election;     definition     and     ex- 

ample. 

296.  Of   two    kinds;    expressed    and 

implied. 

297.  Importance   of    the   distinction 

between  the  two. 

298.  Circumstances  under  which  the 

doctrine  of  election  arises;  il- 
lustrations. 

299.  After-acquired  lands. 

300.  Powers. 

301.  Donor  must  give  property  of  his 

own. 

302.  Property  of  the  donee  must  be 

also  given. 

303.  Gifts  must  be  by  the  same  in- 

strument. 

304.  Manner  in  which  election  may 

be  made. 

305.  Consequence   of   an   election    is 

compensation,  not  forfeiture. 

306.  Application  of  doctrine  of  elec- 

tion to  case  of  creditors. 


280.  Definition  of  estoppel. 

Equitable  estoppel  is  a  doctrine  of  comparatively  modern 
growth.  It  has  develojied  largely  within  the  past  few  years, 
and  has  received  not  a  little  consideration  at  the  hands  of  judges 
and  text-writers. 

An  estoppel  was  defined  by  Lord  Coke  to  be  where  "a  man's 

28 


434 


EQUITABLE    ESTOPPEL;    ELECTION. 


[part  II. 


own  act  or  acceptance  stop}jeth  or  closeth  up  his  mouth  to 
allege  or  plead  the  truth."  ^  This  definition,  however,  is  rather 
striking  than  accurate.  A  man  is  not  prevented,  by  estoppel, 
from  telling  the  truth.  He  is  only  barred  from  the  assertion  of 
a  right  or  title  by  some  previous  action  or  conduct  on  his  part 
which  would  render  the  present  assertion  of  his  right  unjust. 
Where,  for  instance,  the  owner  of  shares  of  stock  signs  a  letter  of 
attorney  to  transfer  in  blank,  he  confers  an  authority  upon  any 
subsequent  bona  fide  holder,  for  value,  to  fill  in  his  own  name,  and 
is  estopped  from  denying  the  existence  of  such  authority.  He  is 
prevented  by  his  own  act,  viz.,  his  signature  to  a  blank  power 
of  attorney,  from  asserting  his  title;  for  to  permit  him  to  insist 
upon  it  after  arming  another  with  an  apparent  authority  to 
divest  it,  would  be  contrary  to  justice  and  good  faith. ^  In 
other  words,  where  an  act  is  done  or  a  statement  made  by  a 
party,  under  vsuch  circumstances  that  to  impair  its  efficacy  or 
controvert  its  truth,  would  be  (to  quote  the  language  of  Chitty, 
J.,  in  the  case  just  cited  ^)  "contrary  to  justice  and  good  faith," 
the  result  is  that  the  party  is  debarred  from  asserting  any  right 
or  title  in  opposition  to  any  right  which  has  been  acquired  in 
reliance  upon  such  act  or  statement;  and  this  result  is  called 
an  estoppel.^  Viewed  in  this  light,  estoppels  are  not  odious 
su))})ressions  of  the  truth,  as  they  were  considered  to  be  in  the 
old  law ;  but  are  part  of  the  machinery  by  which  equitable  con- 
clusions are  reached.^ 

The  correct  view  of  an  estoppel  is  that  taken  in  a  learned 
work  devoted  to  this  particular  branch  of  the  law,  wherein  the 
whole  subject  has  been  elaborately  discussed.®  "Certain  admis- 
sions," it  is  there  said,  "are  indisputable,  and  estoppel  is  the 


1  Co.  Litt.  352,  a.  The  instance 
given  by  Littleton,  upon  which  the 
remark  cited  is  a  comment,  was 
where  a  man  was  estopped  by  his 
feoffment. 

2  See  the  remarks  of  Chitty,  J.,  in 
Colonial  Bank  v.  Hepworth,  36  Ch. 
D.  53  and  54;  and  see,  also,  Colonial 
Bank  v.  Cady,  15  App.  Cas.  285. 

3  Colonial  Bank  v.  Hepworth,  36 
Ch.  D.  53  and  54. 

*  See  Earl  of  Sheffield  v.  London 
Joint  Stock  Bank,  13  .\pp.  Cas.  .3.33; 
Wood's  Appeal,  92  Pa.  379,  and  the 


dissenting  opinion  of  Mitchell,  J.,  in 
Ryman  v.  Gerlach,  153  Id.  206. 

5  "  The  office  of  estoppels  at  law  is 
like  that  of  injunctions  in  equity,  to 
preclude  rights  which  cannot  be  as- 
serted consistently  with  good  faith 
and  ju.stice,  and  to  prevent  wrongs, 
for  which  there  might  be  no  adequate 
remedy."  Van  Rensselaer  v.  Kear- 
ney, 11  How.  297.  See,  also.  Doe  v. 
Dowdall,  3  Houst.  377;  Calder  v. 
Chapman,  52  Pa.  359. 

6  Bigelow  on  Estoppel. 


CH.  IV.]  EQUITABLE   estoppel;   ELECTION.  435 

agency  of  the  law  by  which  evidence  to  controvert  their  truth 
is  excluded."  ^ 

It  has,  indeed,  been  sometimes  said  that  the  doctrine  of  Es- 
toppel is  a  branch  of  the  law  of  Fraud.^  This  is  so  if  "fraud" 
is  used  in  the  general  sense  of  what  is  "inequitable"  or  "un- 
just;" but  it  is  not  accurate  if  by  fraud  is  meant  deceit.'^  For 
the  equitable  doctrine  of  estoppel  may  be  enforced  against  one 
who  has  been  guilty  of  no  deceit,  but  who  has,  through  innocent 
misapprehension,  induced  another  to  rely  upon  his  statements 
or  conduct. 

281.  Different  kinds  of  estoppel;  legal  estoppels  in  pais. 

Estoppels  may  arise  either  by  matter  of  record,  of  deed,  or 
in  pais^ 

It  is  only  with  estoppels  of  the  latter  class  that  we  have  any- 
thing to  do — estoppels  by  record  and  by  deed  being  common- 
law  estoppels,  and  not  the  peculiar  province  of  chancery  juris- 
diction. 

Indeed,  some  estoppels  in  pais  are  recognized  and  acted  upon 
at  conmion  law.  These  are  stated  by  Lord  Coke  to  be  estoppels 
by  livery,  by  entry,  by  acceptance  of  rent,  by  partition,  and  by 
the  acceptance  of  an  estate.^  Of  these  the  only  two  which  pre- 
vail in  America  at  the  present  day  are  estoppels  by  partition 
and  by  acceptance  of  rent.*'  But  these  are  not  equitable  estop- 
pels, for  they  are  quite  well  recognized  at  common  law.  We 
may,  therefore,  put  aside  from  consideration  any  estoppels  which 
existed  in  the  time  of  Lord  Coke.' 

Since  Coke's  time  there  has  grown  up  a  large  class  of  estop- 
pels in  pais.  Of  these  some  may  be  considered  legal  estoppels 
(or  those  which  arc  thoroughly  recognized  in  courts  of  law), 
such  as  the  estoppel  which  j^revents  a  bailee  from  denying  the 
title  of  the  bailor,  or  the  estoppel  which  displays  itself  in  the 
warranty  of  genuineness  implied  by  the  acceptance  and  the  en- 
dorsement of  a  bill  of  exchange  or  a  promissory  note;*  and 

'  Bigclow  on  Eslopptl,  Iiilroduc-  ^  gee  notes  to  the  Duchess  of  King- 
lion,  xUv.  (2d  ed.).  ston's  Case,  2  Sm.  Lead.  Cas.  617. 

2Comm.  V.  Moltz,  10  Pa.  530;  Ste-  ^  Co.  Litt.  352,  a. 

phens  I'.  Baird,  9  Cow.  274;  Dewy  r.  «  Bigelow    on    Estoppel,    454    (5th 

Field,   4    IMot.    381;   Congregation    v.  eil.). 
Williams,  9  Wend.  147.  ^  Id.  455. 

3  2  Pom.  Eq.  Jurisp.  §803,  where  »  Bigelow   on   Estoppel,    481    (5th 

the  distinction  is  well  explained.  ed.);  2  Sm.  Lead.  Cas.  658. 


436 


EQUITABLE   ESTOPPEL;   ELECTION. 


[part  II. 


some,  on  the  other  hand,  may  be  described  to  be  purely  equi- 
table estoppels,  or  those  estoppels  which,  although  they  may  be 
recognized  and  acted  upon  in  courts  of  law,  nevertheless  owe 
their  origin  and  development  to  the  ideas  of  justice  entertained 
and  promulgated  by  Courts  of  Chancery.'  This  particular  class 
of  estoppels  in  pais  embraces  what  are  known  as  estoppels  by 
conduct;  and  this  phrase  may  be,  perhaps,  used  as  the  correlative 
term  for  equitable  estoppels.^ 


282.  Equitable  estoppel  or  estoppel  by  conduct ;  founded 
on  fraud. 

Equitable  estoppel,  or  estoppel  by  conduct,^  has  its  foundation 
in  the  necessity  of  compelling  the  observance  of  good  faith ;  be- 
cause a  man  cannot  be  prevented  by  his  conduct  from  asserting 
a  previous  right,  unless  the  assertion  would  be  an  act  of  bad 
faith  towards  a  person  who  had  subsequently  acquired  the  right.^ 

It  is  the  presence  of  this  bad  faith,  either  in  the  intention  of 
the  party,  or  by  reason  of  the  result  which  would  be  produced 


1  The  doctrine  of  estoppel  in  pais 
originated  in  chancery,  but  is  now- 
adopted  in  courts  of  law.  Note  to 
Duchess  of  Kingston's  Case,  2  Smith's 
Lead.  Cas.  711;  111.  Cent.  R.  Co.  v. 
B.  &  O.  &  C.  R.  Co.,  23  111.  App.  531. 
Sec,  also,  Curtin  r.  vSalmon  River  Co., 
141  Cal.308;  Blood  ?;.  La  Serena  Land, 
etc.,  Co.,  113  Cal.  221,  where  the  dif- 
ference between  equitable  estoppel 
and  ratification  is  referred  to. 

2  Horn  V.  Cole,  51  N.  H.  290;  Bige- 
low  on  Estoppel.  556  (5th  ed.).  Es- 
toppels of  this  class  "extend  to  all 
cases  where  one  party  by  his  con- 
duct wilfully  or  negligently  induces 
another  party  to  do  or  omit  to  do  a 
particular  thing."  Wharton  on  Evi- 
dence, §  1143,  citing  (among  other 
cases)  Stevens  v.  Dennett,  51  N.  H. 
324;  Zuchtmann  v.  Roberts,  109 
Mass.  53;  Barnard  v.  Campbell,  55 
N.  Y.  456;  Comstock  v.  Smith,  26 
Mich.  306;  People  v.  Brown,  67  111. 
435;  Peters  v.  Jones,  35  la.  512; 
Dresbach  v.  Minnis,  45  Cal.  223; 
Thomas  v.   PuUis,  56  Mo.   211.     In 


State  V.  Flint  &  P.  M.  R.  Co.,  89 
Mich.  481,  it  was  held  that  the  doc- 
trine applies  to  a  State  as  well  as  to 
an  individual;  but  upon  this  point 
see  Bigelow  on  Estoppel,  341  (5th 
ed.),  where  the  contrary  doctrine  is 
expressed.  Rogers  v.  Street  Railway, 
100  Me.  86. 

■i  See  St.  Paul's  Ref .  Ch.  v.  Hower, 
191  Pa.  312. 

<  "The  principle  runs  through  the 
whole  doctrine  of  estoppel  that  a  man 
is  only  prevented  from  alleging  the 
truth  when  his  assertion  of  a  false- 
hood or  his  silence  has  been  the  in- 
ducement to  action  by  the  other  party 
which  would  result  in  loss  if  the  op- 
ponent was  permitted  to  gainsay 
what  he  had  before  as.serted,  or  in- 
duced the  other  to  believe  by  his 
acts."  Patterson  v.  Lytle,  11  Pa.  53. 
See,  also.  Hill  v.  Epley,  31  Id.  334. 
Slicker  v.  Schuchert,  179  Id.  401; 
Rice  V.  Groffmann,  56  Mo.  435;  Os- 
born  V.  Elder,  65  Ga.  360;  Snell  v. 
Bank,  29  Oreg.  250. 


CH.  IV.]  EQUITABLE    ESTOPPEL;   ELECTION.  437 

if  he  were  periiiittcd  to  dtMiy  the  truth  of  his  statement,  that  dis- 
tinguishes this  species  of  estoppel  fi'om  estoppel  at  common  law.^ 

Equitable  estoppel  might,  therefore,  have  been  noticed  under 
the  head  of  Fraud — the  word  "fraud"  being  used  in  the  general 
sense,' — but  it  may  propei'ly  receive  a  separate  consideration, 
because,  in  modern  times,  this  doctrine  has  assumed  an  im- 
portance which  warrants  its  notice  as  a  distinct  head  of  Equitable 
Jurisdiction. 

The  representation  which  will  operate  as  an  estoppel  must  be 
(o)  one  that  is  either  a  suggestion  of  an  untruth,  or  a  conceal- 
ment of  the  truth  when  there  is  a  duty  to  speak;  (b)  it  is  always 
external  to  the  transaction ;  (r)  and  it  may  be  a  representation 
which  takes  place  either  in  a  transaction  effected  between  the 
party  alleging  the  estoppel  and  the  i)arty  estopped,  or  in  one  be- 
tween the  party  alleging  the  estoppel  and  some  third  party .•"' 

283.  A  party  may  be  estopped  by  the  assertiou  of  an  uu- 
trutli ;   Congregation  v.    Williams. 

The  assertion  of  an  untruth  may  operate  to  estop  a  party 
from  subsequently  setting  up  the  truth."*  Thus,  a  tenant,  when 
a  distress  was  levied  on  certain  goods  upon  the  premises,  de- 
clared that  the  goods  did  not  ]:)elong  to  him,  and  the  disti'ess 
was  thereupon  abandoned.    Afterwards  the  landlord  brought  an 

iComm.  1'.  Moltz,  10  Pm.  531;  Rob-  Compare  this  statement  with  the 

bins  V.  Moore,  129  111.  ;^0.  requisites  to  a   fraudulent  niisrepre- 

-'  Hill  V.  Epley,  '.'A  Pa.  :\?A.  sentation  gencraUy,  stated  ante,  ^  2U(). 

:*  In  Bigelow  on  Estoppel,  .'»7(l  (.'illi  See,  also,  the  remarks  of  Cowen,  J., 

ed.),  it  is  said  that  the  following!,  lir-  in  Dezell  v.  Odell,  3  Hill,  219,  and  the 

ments  must  be  present  in  order  to  an  cases  of  Stevens  c.  Dennett,  51  N.  H. 

estoppel  by  conduct:  ^524;   People   r.    Brown,   67   111.   4:j5; 

1.  There  must  have  been  a  false  Martin  r.  Zellerbach,  38  Cal.  300,  315; 
representation  or  concealment  of  ma-  Wood  v.  Blany,  107  Cal.  291 ;  Acton  v. 
terial  facts.  Dooley,  74  Mo.  63;  Trenton  Banking 

2.  The  representation  must  have  Co.  v.  Duncan,  86  N.  Y.  221 ;  Tinion  c. 
been  made  with  knowledge  of  the  Whitehead,  58  Tex.  290;  Griffith  v. 
facts.  Wright,  6  Colo.  248;  Western  Land 

3.  The  party  to  whom  it  was  made  .\ssociation  v.  Banks,  80  Minn.  317; 
m\ifit  have  been  ig7iorant  of  the  trutii  Chesapeake  and  Ohio  Ry.  Co.  r. 
of  the  matter.  Walker,  100  Va.  69;  Goo  Kim  v.  Holt, 

4.  It  must  have  been  made  with  10  Hawaii,  653. 

the    intention   that    the   other   party  ■»  To  raise  an  estoppel  there  must  be 

shoulfl  act  upon  it.  a  misrepre-sentation  of  existing  facts, 

5.  The  other  party  must  have  been  and  not  of  mere  intention.  Chad- 
induced  to  act  upon  it.  wick  v.  Manning  [1896],   A.  C.  231. 


438 


EQUITABLE    ESTOPPEL;   ELECTION. 


[part  II. 


action  of  ejcctiiient  upon  a  clause  in  the  lease  authorizing  a  re- 
entry for  non-payment  of  rent,  in  case  sufficient  distrainable 
goods  were  not  found  on  the  premises.  In  this  action  the  tenant 
endeavored  to  show  that  the  goods  on  the  premises  in  point  of 
fact  were  his ;  but  it  was  held  that  he  was  estopped  from  so  doing 
by  his  previous  untruth.'  And  so  it  has  been  held  that  a  party 
who  stands  by  at  the  sale  of  his  property  under  a  void  authority 
and  encourages  purchasers  to  bid,  is  guilty  of  a  direct  fraud,  and 
that  under  such  circumstances  a  trust  ex  malejicio  will  arise  which 
a  Court  of  Chancery  will  enforce.' 

Moreover,  it  is  not  necessary  that  the  assertion  of  untruth 
should  be  wilful.  It  may  have  been  innocently  made.  It  may 
have  been  stated  through  a  pure  mistake.  Nevertheless,  if  the 
other  party  relied  upon  it  and  acted  on  it,  the  party  making 
the  statem(^nt  is  estopped  from  denying  it.'^ 

So  potent  and  so  extended  is  this  principle  that  it  has  been 
applied  in  sustaining  the  effect  of  judicial  proceedings  which 
otherwise  would  fall  for  want  of  jurisdiction;  for  a  defendant  in  a 
judgment  which  is  void  for  lack  of  jurisdiction,  may  in  ec^uity 
be  estopped  by  his  conduct  from  questioning  it  on  that  ground.'* 

284.  A  party  may  be  estopped  by  the  concealment  of  the 
truth  ;  Ficknrd  v.  Sears. 

The  concealment  of  the  truth  often  operates  as  an  estoppel. 
It  has  been  forcil^ly  said  that  if  a  man  is  silent  when  it  is  his  duty 
to  speak,  he  shall  not  be  permitted  to  speak  when  it  is  his  duty 
to  be  silent. ■'•     Of  this  doctrine  the  leading  case  of  Pickard  v. 


1  Congregation  v.  Williams,  9 
Wend.  147;  2  Sm.  L.  C.  64.3.  Also, 
Hefner  v.  Vandolah,  57  111.  520; 
Winchell  v.  Edwards,  Id.  41 ;  Leeper 
V.  Hersman,  58  Id.  218;  Horn  v.  Cole, 
51  N.  H.  287;  Alexander  v.  Ellison, 
79  Ky.  148;  Rudd  v.  Matthews,  Id. 
479;  Robb  v.  Shephard,  50  Mich.  189; 
Dodge  V.  Pope,  93  Ind.  480;  Plummer 
V.  Farmers'  Bank,  90  Id.  386;  Keat- 
ing V.  Ome,  77  Pa.  93;  Mowry's  Ap- 
peal, 94  Id.  376;  Hill  v.  Wand,  47 
Kan.  340;  Wright  v.  McCord,  113 
Ga.  881;  Lick  v.  Munro,  8  Idaho,  510. 

2  Nass  V.  Vanswearingen,  10  S.  & 
R.  146;  Buchanan  i'.  Moore,  13  Id. 
304;  Comm.  v.  Moltz,    10  Pa.   531; 


Miles  V.  Lefi,  60  la.  168;  Nichols  v. 
Crosby,  87  Tex.  443;  Norfolk  &  West. 
R.  R.  V.  Perdue,  40  W.  Va.  442;  Two 
Rivers  Manuf.  Co.  v.  Day,  102  Wis. 
328. 

3  See  post,  §  288,  and  cases  cited. 

*  Davis  V.  W^akelee,  156  U.  S.  680. 
See,  also,  Abbot  v.  Wilbur,  22  La. 
Ann.  368;  Philadelphia,  etc.,  R.  R.  v. 
Howard,  13  How.  337;  Railway  Com- 
pany V.  McCarthy,  96  U.  S.  258. 

5  Niven  v.  Belknap,  2  Johns.  R. 
573.  See  Logan  v.  Gardner,  136  Pa. 
600;  Morgan  v.  Railroad  Company,  96 
U.  S.  716;  MePherson  v.  Berry,  92  la. 
64;  Radant  v.  W^erheim  Mfg.  Co.,  106 
Wis.   600;   Harris  v.   Am.   B.   &   L. 


CH.  IV.] 


EQUITABLE    KS'I'OI'I'KL  ;    ELECTION. 


439 


Sears  ^  is  an  illustration.  A  mortgagee  of  personalty  was  there 
held  to  be  estopped  from  asserting  his  title  under  the  mortgage, 
because  he  had  passively  acquiesced  in  a  purchase  of  the  same 
by  the  defendant  under  an  execution  against  the  mortgagor.^ 
Another  illustration  may  be  found  in  the  case,  which  not  un- 
frequently  occurs,  of  a  party  being  estopped  from  taking  objec- 
tions to  the  form  of  an  instrument  because  he  was  silent  as  to 
those  objections  at  the  time  of  the  tender.^ 


Ass'n,  122  Ala.  545;  Smith  v.  Fletcher, 
75  Minn.  189;  McDonald  v.  Beatty, 
10  N.  Dak.  511;  Biggs  v.  Utah  Co.,  7 
Ariz.  351;  Peabody  v.  Damon,  16 
Haw.  447. 

Where  a  tenant  by  the  curtesy 
executes  an  oil  lease  without  the 
remaindermen,  a  son  and  two  daugh- 
ters, joining  in  the  lease,  and  sub- 
sequently the  three  remaindermen 
bring  a  joint  action  of  trespass  against 
the  lessee  to  recover  damages  for  the 
taking  of  oil,  and  there  is  sufficient 
evidence  to  constitute  an  estoppel 
against  the  son,  although  no  evi- 
dence of  estoppel  against  the  daugh- 
ters, a  joint  recovery  is  defeated,  and 
a  verdict  and  judgment  for  the  de- 
fendant will  be  sustained.  In  sucli 
a  case  there  is  sufficient  evidence  to 
constitute  an  estoppel  against  the 
son,  where  it  appears  that  lie  had 
urged  the  taking  of  the  lease  in  the 
first  instance  from  his  father,  had 
encouraged  the  <  xpenditure  of  money 
by  the  lessees  in  developing  the  lease, 
had  worked  on  the  lease  at  different 
times  for  several  years,  and  had  re- 
ceived checks  made  payable  to  his 
own  order  for  a  number  of  years  for 
the  royalty  due  under  the  lease  for 
oil  run  into  the  pipe  line  in  the  name 
of  his  father.  Mcintosh  v.  Ropp, 
222  Pa.  606. 

1  6  Ad.  &  El.  469.  See,  also,  Win- 
ton  V.  Hart,  39  Conn.  16;  Railroad 
Co.  V.  Dubois,  12  Wall.  47;  Chapman 
V.  Chapman,  59  Pa.  214;  Epley  v. 
Witherow,    7    Watts,    165;    Carr    i'. 


Wallace,  Id.  400;  St.  Paul's  Ref.  Ch. 
V.  Hower,  191  Pa.  314;  Redmond  v. 
Saving  Fund,  194  Id.  647;  Paine  v. 
Bank,  Id.  408,  Hogan  v.  Peterson,  8 
Wyo.  549,  ColHer  v.  Ptenning,  34 
N  J.  Eq.  22,  and  Sutton  v.  Con.  Apex 
Min.  Co.,  14  S.  Dak.  33. 

2  But  such  estoppel  will  not  arise 
as  against  the  officer  by  whom  the 
seizure  is  made,  or  his  bondsmen. 
Schilling  v.  Black,  49  Kan.  552; 
Smith  ('.  Caldwell,  22  Mont.  331;  nor 
between  the  mortgagor  and  mort- 
gagee. Richardson  v.  Coffman,  87 
Iowa,  121.  See,  also,  Hamilton  v. 
Carter,  12  Wash.  510,  and  Wam- 
pol  ('.  Kountz,  14  S.  Dak.  334. 

^  Or  to  deny  the  line  between  his 
own  and  the  adjoining  land  to  be  the 
true  line  if  he  has  induced  another 
to  purchase  and  has  sold  ami  con- 
veyed land  up  to  such  line.  Allyn 
/;.  Schultz,  5  Ariz.  KiO.  See,  for  in- 
stances of  estoppel  by  silence,  Hope 
V.  Lawrence,  50  Barb.  258;  Blake  v. 
Exch.  Ins.  Co.,  12  Gray,  265;  Hoxie 
r.  Home  Ins.  Co.,  32  Conn.  21;  Cam- 
bridge V.  Littlefield,  6  Cush.  210; 
Ford  V.  Williams,  24  N.  Y.  359; 
(iregg  r.  Von  Phul,  1  Wall.  274;  Hill 
V.  Epley,  31  Pa.  334;  Maple  v.  Kus- 
.sart,  53  Id.  348;  Abrams  v.  Scale,  44 
.\la.  297;  Guthrie  v.  Quinn,  43  Id. 
561;  Tobias  v.  Josiah  Morris  &  Co., 
126  Ala.  535;  Southern  Railway  Co. 
V.  Hood,  Id.  312;  Ives  v.  North  Ca- 
naan, 33  Conn.  402;  Smith  i;.  Smith, 
30  Id.  Ill;  Newell  v.  Nixon,  4  Wall. 
572;    Weber  v.   Weatherby,   34    Md. 


440 


EQUITABLE   ESTOPPEL;   ELECTION. 


[part  II. 


Under  the  same  principle,  ali^^o,  has  been  placed  another  class 
of  cases,  namely,  that  which  embraces  instances  in  which  an  in- 
ventor who  has  made  his  discovery  public  looks  on  and  permits 
others  to  use  it,  without  objection  or  assertion  of  a  claim  to 
royalty.  In  such  a  case  the  inventor  is  held  to  have  abandoned 
his  inchoate  right,  and  to  be  estopped  from  its  subsequent  as- 
sertion; and  this  is  so  in  cases  in  which  a  single  individual  has 
been  permitted  by  the  patentee  to  use  his  invention  without 
compensation.^ 

But  silence  will  not  always  work  an  estoppel,  for  silence  may 
not  always  be  inequitable,^  and,  moreover,  a  person  is  not  bound 
under  all  circumstances  to  speak  out.^  He  may  not,  for  ex- 
ample, be  bound  to  declare  that  which  is  a  matter  of  record, 
and  of  which  he  has  a  right  to  presume  the  other  party  has 
notice."  Nor  will  he  be  estopped  by  silence  when  he  has  had 
no  opportunity  to  speak. ^ 


656;  Fletcher  v.  Holmes,  25  Ind. 
458;  Stagg  v.  Ins.  Co.,  10  Wall.  589; 
Booth  V.  Wiley,  102  111.  84;  Moffitt  v. 
Adams,  60  la.  44;  Silloway  v.  Nep- 
tune Ins.  Co.,  12  Gray,  73;  Husted's 
Appeal,  34  Conn.  488;  Young  v. 
Vough,  23  N.  J.  Eq.  .325;  Muncey  v. 
Joest,  74  Ind.  409;  Roszell  v.  Roszell, 
109  Id.  354;  Slocumb  v.  C,  B.  &  Q.  R. 
Co.,  57  la.  675;  Sayers  v.  Collyer,  28 
Ch.  D.  103;  Dodge  v.  Lansing  Trac- 
tion Co.,  152  Mich.  100;  Lydick  v. 
Gill,  68  Neb.  273;  Battery  Park  Bank 
V.  Bank,  138  N.  C.  467;  United  Shoe 
Co.  V.  Bresnahan  Co.,  197  Mass.  200. 
iSee  Gill  v.  United  States,  100 
U.  S.  426;  and  pp.  430  et  seq.,  where 
the  principle  is  stated  by  Mr.  Jus- 
tice Brown  and  the  decisions  are  re- ' 
viewed.  See,  also,  Tygert-Allen  Fer- 
tilizer Co.  V.  Tygert  Co.,  191  Pa.  336- 
345,  a  case  of  acquiescence  in  the  use 
of  a  trade  name. 

2  See  Lawrence  v.  Luhr,  65  Pa.  241 ; 
Harrison  v.  McReynolds,  183  Mo. 
533;  Lake  Roland  Elev.  Ry.  Co.  v. 
Hibernian  Soc,  83  Md.  420;  Chafee 
V.  City  of  Aiken,  57  S.  C.  507. 

3  See  Proctor  v.  Bennis,  36  Ch.  D. 
740;    Corning    v.    Troy    I'^actory,    39 


Barb.  311;  40  N.  Y.  191;  Shaw  v. 
Spencer,  100  Mass.  382;  Watson  v. 
Knight,  44  Ala.  352;  Hopper  v.  Mc- 
Whorter,  18  Id.  229;  Taylor  v.  Ely, 
25  Conn.  250;  Spencer  v.  Carr,  45 
N.  Y.  406;  Elliott  v.  Ins.  Co.,  66  Pa. 
26;  Verrier  v.  Guillou,  97  Id.  63; 
Counterman  v.  Dublin,  38  Ohio,  515. 

<  Rice  V.  Dewey,  54  Barb.  455; 
Bales  V.  Perry,  51  Mo.  449;  Sumner 
V.  Seaton,  47  N.  J.  Eq.  103;  Southern 
B.  &  L.  Assn.  V.  Page,  4  W.  Va.  302; 
Clark  V.  Parsons,  69  N.  H.  147;  Wiser 
V.  Lawler,  189  U.  S.  271.  But  it 
must  be  remembered  that  registra- 
tion is  not  sufficient  notice  to  prevent 
an  estoppel  where  the  conduct  which 
creates  the  estoppel  is  an  affirmative 
act  or  word  as  distinguished  from 
silence.  Morris  v.  Herndon,  113 
N.  Car.  236;  Anderson  v.  Phlegar, 
93  Va.  415;  Two  Rivers  Mfg.  Co.  v. 
Day,  102  Wis.  328;  Eastwood  v. 
Standard  Mines  Co.,  11  Idaho,  195. 

5  Davidson  v.  Barclay,  63  Pa.  417; 
Collier  v.  Miller,  137  N.  Y.  332; 
Priewe  v.  Wisconsin  State  Land  & 
Imp.  Co.,  103  Wis.  537;  Yeager  v. 
Woodruff,  17  Utah,  361;  Norton  v. 
Tufts,  19  Id.  470. 


en.  IV.]  EQUITABLE    ESTOPPEL;    ELECTION,  441 

285.  Conduct  which  works  an  estoppel  must  be  external  to 
the  contract. 

Estoppel  by  conduct  must  consist  in  something  which  is 
external  to  the  contract  or  transaction.  To  explain:  the  obligor 
in  a  bond  may  have  a  good  defence  to  any  action  on  the  instru- 
ment by  reason  of  its  having  been  obtained  by  fraud  or  duress. 
Such  obligor  might  be  estoi)ped  from  setting  up  such  a  defence 
against  an  innocent  assignee,  if  the  assignment  had  taken  place 
upon  the  faith  of  his  assertion  that  no  defence  existed.  That 
would  be  an  estoppel,  and  it  would  arise  out  of  something  ex- 
ternal to  the  contract.  But  if  no  such  assertion  had  been  made, 
and  the  assignee  were  simply  to  argue  that  the  obligor  of  the 
bond  was  estopped  by  the  recital  contained  in  the  bond  that 
"he  was  justly  indebted"  from  showing  that  in  fact  he  was  not 
justly  indebted,  such  an  argument  would  be  unsound,  because, 
in  that  case,  the  estoppel  would  be  attempted  to  be  founded 
upon  something  in  the  contract  itself,  and  this  cannot  be  done. 
The  reason  of  this  distinction  is  simply  that  if  the  very  words 
of  a  contract  are  to  be  taken  as  a  representation  of  facts,  which 
estops  the  party  who  makes  the  obligation  from  interposing  a 
defence  inconsistent  with  that  representation,  then  all  contracts 
must  be  deemed  valid  which  appear  to  be  so  on  their  face,  and 
neither  usury,  nor  duress,  nor  fraud  could  any  longer  be  alleged 
in  defence.^ 

286.  Representations  between  party  alleging  estoppel  and 
party  estopped. 

The  representation  which  works  an  estoppel  may  sometimes 
take  place  in  a  transaction  effected  between  the  party  alleging 
the  estoppel  and  the  party  estopped. ^  In  other  words,  the  par- 
ties to  the  transaction  and  the  parties  to  the  estoppel  may  be 
the  same.  Under  this  doctrine  fall  those  cases  in  which  a  de- 
fence to  a  contract,  which  might  otherwise  have  been  taken,  has 
been  waived  by  the  conduct  of  the  party.  Thus,  a  common  in- 
stance is  found  in  the  cases  in  which  insurance  companies  have 
been  held  incapable  of  raising  objections  to  the  insufficiency  of 
preliminary  proofs  of  loss,  because  they  have  by  their  conduct 
dispensed  with  the  requirements  of  their  policies.^ 

1  Wilkinson  v.  Searcy,  74  Ala.  243;  2  Clark  v.  Sisson,   22  N.  Y.  312; 

Knapp  V.  Bailey,  79  Me.  195;  Bridger       Bigelow  on  Estoppel,  480  (1st  ed.). 
V.  C.oldsmith,  143  N.  Y.  424.  ^  Blake  v.  Exchange  Ins.  Co.,   12 


442 


EQUITABLE   ESTOPPEL;  ELECTION. 


[part  II. 


287.  Representations  between  party  alleging  estoppel  and 
third  party. 

On  the  other  hand,  the  representations  which  give  rise  to  an 
estoppel  may  occur  in  a  transaction  which  takes  place  between 
the  party  alleging  the  estoppel  and  some  third  party;  in  other 
words,  the  parties  to  the  transaction  and  to  the  estoppel  may  be 
different.  This  embraces  by  far  the  largest  class  of  estoppels 
by  conduct,  and  is  a  species  of  estoppel  which  receives  its  greatest 
encouragement  in  courts  of  equity,  and,  therefore,  most  strictly 
deserves  the  term  of  equitable  estoppel.  Under  this  head  fall 
the  case  of  Pickard  v.  Sears,'  cited  above,  and  all  those  numerous 
cases  in  which  a  party  is  prevented  from  asserting  his  title  be- 
cause, by  active  encouragement  or  equally  effective  silence,  he 
has  induced  third  parties  to  believe  that  no  such  title  exists, 
and  they  have  expended  money,  or  in  some  way  altered  their 
position  on  the  faith  of  such  supposed  non-existence.^ 

Thus,  it  has  been  often  held,  that,  where  the  owner  of  real 
estate  encouraged  another  to  erect  valuable  improvements  upon 
the  land,  he  was  precluded  from  subsequently  asserting  his 
title.^    So,  if  the  owner  of  an  estate  stands  by  and  sees  another 


Gray,  265;  Hoxie  v.  Home  Ins.  Co., 
32  Conn.  21;  McCormick  v.  Ins.  Co., 
163  Pa.  184;  Roberts  v.  Northwe.st- 
ern  Nat.  Ins.  Co.,  90  Wis.  210;  High- 
lands V.  Fire  Ins.  Co.,  177  Pa.  566 
(a  case  in  which  the  company  was 
estopped  from  denying  the  vaHdity 
of  a  parol  assignment) ;  Kalmutz  v. 
Ins.  Co.,  186  Id.  .576;  Farmers'  Fire 
Ins.  Co.  V.  Baker,  94  Md.  545;  Bige- 
low  on  Est.  662  (5th  ed.). 

1  6  Ad.  &  El.  469.  See  Thweatt  v. 
McCullough,  84  Ala.  517;  Gruber  v. 
Baker,  20  Nev.  453;  Redmond  v. 
Excelsior  Saving  Fund,  194  Pa.  647; 
Bodkin  v.  Arnold,  45  W.  Va.  90. 

2  One  who  acts  in  reliance  upon  a 
representation  not  addressed  to  nor 
intended  for  him,  does  so  at  his 
own  risk,  and  cannot  make  it  the 
basis  of  an  estoppel.  Weidemann  v. 
Springfield  Co.,  78  Conn.  660. 

Positive  acts  on  the  part  of  the 
true  owner  of  land  which  induce  an 
innocent  party  to  deal  with  it  as  if 


the  title  were  in  another,  will  estop 
him  from  setting  up  title  in  himself, 
even  though  he  was  ignorant  of  his 
title  and  no  fraud  was  actually  in- 
tended. Chambers  v.  Bookman,  67 
S.  C.  432. 

3  Leeds  v.  Amherst,  2  Phil.  117; 
Lewis  V.  Baker,  162  Pa.  510;  Favill  v. 
Roberts,  50  N.  Y.  222;  Wendell  v. 
Van  Rensselaer,  1  Johns.  Ch.  354; 
Storrs  V.  Barker,  6  Id.  166  (c/.  with 
this  case  Lammot  v.  Bowly,  6  H.  & 
J.  500) ;  Truesdail  v.  Ward,  24  Mich. 
134;  Schafer  v.  Wilson,  113  Iowa,  475; 
Smith  V.  McNeal,  68  Pa.  164;  Browne 
V.  Trustees  Baltimore  Church,  37  Md. 
108,  124;  Walker  v.  Flint,  3  McCrary, 
507;  Peery  v.  Hall,  75  Mo.  503; 
Reichert  v.  Railway,  51  Ark.  491. 
But  see  St.  Louis  S.  &  R.  Co.  v. 
Green,  4  McCrary,  232,  where  the 
estoppel  was  limited  to  the  improve- 
ments; also  Kelly  v.  Wagner,  61 
Miss.  298;  Two  Rivers  Mfg.  Co.  v. 
Day,  102  Wis.  328;  Mallory  r.  Kess- 


("H.  ]V.] 


equitablp:  estoppel;  election. 


443 


expend  money  \ii)on  an  adjoining  estate,  the  latter  relying  upon 
an  existing  right  of  ea.senient  in  the  other  estate,  without  which 
such  expenditure  would  be  useless,  and  does  not  interpose  to  pre- 
vent the  work,  he  will  not  he.  permitted  to  interrupt  the  enjoy- 
nient  of  such  easement.^ 

Under  the  same  head  fall  those  cases  in  which  a  party  has 
been  held  to  be  precluded  from  denying  that  he  occupied  a  cer- 
tain ))osition  by  I'oason  of  his  having  permitted  himself  to  be 
held  out  to  others  as  having  occupied  it.  As,  foi'  instance,  a 
man  who  allows  his  name  to  appear  as  a  shareholder,  to  induce 
others  to  take  stock,  is  estopped  from  denying  that  he  is  such. 
It  would  be  a  fraud  upon  those  who  are  mduced  to  part  with 
their  money  by  this  holding  out,  if  he  were  afterwards  allowed 
to  falsify  it.- 

Instances  of  a  hke  character  might -be  multiplied.  A  man 
who  holds  himself  out  as  a  partner,  is  estopped,  as  against  those 
who  have  dealt  on  the  faith  of  such  holding  out,  from  d(>nying 
the  partnership;  a  man  who  permits  another  to  place  his  name 
upon  a  chattel,  and  thus  appear  to  the  world  to  be  the  owner 
thereof,  cannot  assert  his  title  as  against  one  who  buys  upon 
the  faith  of  such  apparent  ownership:  a  corporation  which, 
by  its  certificates,  represents  its  shares  to  be  full  paid,  is  estopped, 
as  against  a  paity  who  has  acted  on  the  faith  of  the  statement, 
from  denying  that  the  shares  are  paid  in  full;  if  the  owner  of 
property  transfei-s  to  another  the  indicia  of  ownership  and  of  the 
right  of  disposition  and  acknowledges  that  the  transferee  has 
paid  him  a  consideration,  he  is  estopped  fi'om  asserting  his  title 
as  against  a  person  to  whom  such  third  jjarty  has  dis]josed  of  the 
property  and  wlio  took  it  in  good  faith;  and,  in  fine,  where  ac- 
tions or  words  k^ad  others  to  believe  in  the  existence  of  certain 
facts,  the  party  inducing  such  belief  will  not  be  permitted  to 
allege  the  contrary  of  the  facts  for  which  he  has  vouched .•"* 


ler,  18  Utah,  11;  Hagan  v.  Ellis,  39 
Fla.  463;  Latimer  v.  Marchbanks,  57 
S.  C.  267. 

1  Brooks  r.  Curtis,  4  Lans.  (N.  Y.) 
283;  Green  v.  Smith,  57  Vt.  268; 
Washburn  on  Easements,  62,  63. 

2  Bridger's  Case;  L.  R.  9  Eq.  74 ; 
Mitchell's  Case,  Id.  363;  Towne  v. 
Sparks,  23  Neb.  142. 

3  Am.  &  Eng.  Enc.  of  Law,  vol.  17, 


p.  879;  Bissel  v.  Warde,  129  Mo.  439; 
O'Connor  v.  Clark,  170  Pa.  318; 
Parbury's  Case  [1896],  1  Ch.  100; 
Rimmer  v.  Webster  [1902],  2  Ch.  170; 
Lawrence  County  Bank  v.  Arndt,  69 
Ark.  406;  Ludington  v.  Patton  et  al., 
Ill  Wis.  208;  Hurlburt  v.  Arthur,  140 
Cal.  103;  Home  Bank  v.  Stewart,  78 
Neb.  624. 


444  EQUITABLE    ESTOPPEL:    ELE(^TIOK.  [PART  II. 

288.  Representations  need  not  be  known  to  be  false  by 
party  making  them. 

When  it  is  claimed  that  an  estoppel  consists  in  or  arises  from 
silence,  such  a  claim  cannot  be  successfully  maintained  unless 
the  silence  has  amounted  to  wilful  concealment,  or  unless  ac- 
quiescence has  been  with  a  full  knowledge  of  one's  rights.^ 
Where  one  silently  acquiesces  in  the  assertion  of  an  adverse 
right  under  a  mistaken  impression  as  to  his  own,  he  will  not 
be  estopped.  Thus,  where  the  owner  of  land  has  allowed  the 
owner  of  adjoining  lots  to  build  over  the  boundary  line  under 
a  mistaken  impression  in  regard,  to  the  extent  of  his  own  property, 
such  accjuiescence  in  adverse  user,  short  of  the  time  required 
by  the  Statute  of  Limitations,  will  not  deprive  the  party  of  his 
rights,  because  he  is  under  no  obligation  to  assert  a  title  of  the 
existence  of  which  he  is  ignorant.-  If,  however,  the  acquiescence 
is  marked  by  gross  negligence,  the  conduct  of  the  party  who 
thus  unintentionally,  but  negligently,  misleads  another,  may 
preclude  him.^ 

Where,  however,  the  estoppel  springs  not  from  silence  but 
from  positive  assertion,  the  rule  is  different,  and  one  may  be 
estopped  by  his  statements,  no  matter  how  innocently  made,  if 
they  have  been  acted  upon  by  another,  and  if  it  would  be  unjust 
to  that  other  to  deprive  him  of  rights  which  he  has  thus  ac- 
quired. In  such  cases  the  principle  is  that  where  there  are  two 
innocent  persons,  he  whose  mistake,  or  oversight,  or  carelessness 
(even  though  not  wilful)  has  caused  the  loss,  must  suffer.  In  the 
Pennsylvania  case  of  Buchanan  v.  Moore  "*  the  point  was  whether 
a  defendant  in  an  execution  was  estopped  from  subsequently 
claiming  title  to  land  which,  in  point  of  fact,  had  not  been  in- 
cluded in  the  levy,  by  his  statements,  at  the  sale,  that  it  was  so 
included.    It  was  held  that  he  was  estopped;  and  although,  of 

1  Scrutchfield  v.  Sauter,  119  Mo.  57  Conn.  236;  Schraeder  Mining  Co. 
615.  V.  Packer,  129  U.  S.  688;  York  Park 

2  Liverpool  Wharf  v.  Prescott,  7  Building  Ass'n  v.  Barnes,  39  Neb. 
Allen,  494;  4  Id.  22;  Thayer  v.  Bacon,  834;  Bell  v.  Marsh  [1903],  1  Ch.  528. 
3  Id.  163;  Brewer  v.  Boston  &  W.  R.  3  Ante,  §  284,  and  cases  cited. 
Co.,  5  Me.  478;  Proctor  v.  Putman  <  13  S.  &  R.  304.  See  Kinney  v. 
Machine  Co.,  137  Mass.  159;  Raynor  Service,  101  Mich.  185;  Kahn  v. 
V.  Timerson,  51  Barb.  517;  Laverty  v.  Peter,  104  Ala.  523;  State  v.  Branch, 
Moore,  33  N.  Y.  658;  Reed  v.  Mc-  134  Mo.  592;  Cornell  University  v. 
Court,  41  Id.  435;  Rutherford  v.  Parkinson,  59  Kan.  365;  Nickerson 
Tracy,  48  Mo.  325;  Kincaid  r.  v.  Massachusetts  Title  Ins.  Co.,  178 
Dormey,  51  Id.  552;  Chase's  Appeal,  Mass.  308, 


CH.  IV.] 


EQUITABLE    ESTOPPEL;    ELECTION, 


445 


course,  no  legal  title  passed  by  the  sheriff's  deed,  the  purchaser 
acquired  a  good  ecjui table  title  by  virtue  of  the  estoppel.  The 
court,  in  deciding  this  case,  said  that  the  declarations  would 
estop  the  party  making  them  "whether  such  declaration  pro- 
ceeded from  design  or  a  misapprehension  of  the  fact.''  The  same 
rule  has  been  recognized  by  the  English  Court  of  Appeal.  Early 
in  the  century  Sir  William  Grant,  Master  of  the  Rolls,  had  de- 
cided that  where  a  trustee  had  informed  one  who  was  about  to 
make  a  loan  to  the  cestui  que  trust,  on  the  credit  of  the  trust 
estate,  that  the  estate  was  unencumbered,  the  trustee  was  es- 
topped from  afterward  denying  this  statement;  ^  and,  in  com- 
menting on  this  decision.  Lord  Justice  Lindley,  in  the  case  of 
Low  V.  Bouverie,^  said:  "The  trustee,  even  if  he  acted  honestly, 
which  is,  perhaps,  questionable,  was  clearly  estopped  from  deny- 
ing that  the  share  was  unencumbered.".  In  Low  v.  Bouverie  the 
point  upon  which  the  decision  ultimately  turned  was  whether 
the  plaintiff  had,  in  fact,  relied  upon  the  representations  made  in 
the  letters  written  by  the  trustee,  upon  the  subject  of  encum- 
brances against  the  trust  estate,  in  answer  to  the  plaintiff's  in- 
quiries, and  it  was  held  that  he  had  not.  Under  the  well-settled 
rule,  therefore,  that  an  estoppel  to  be  effective  must  have  been 
rehed  upon,  the  plaintiff  failed;  but  the  case  is  important  in 
regard  to  the  doctrine  now  under  consideration,  from  the  ex- 
amination which  that  doctrine  received.^ 

289.  Must  operate  to  deceive  the  party  to  whom  they  are 
made. 

The  party  setting  up  the  estoppel  nmst  actually  be  deceived 
by  the  conduct  of  the  other  party.  If  he  acts  with  a  full  knowl- 
edge of  the  rights  and  title  of  the  other  party,  he  cannot  com- 
plain if  that  title  is  subsequently  asserted.  There  can  be  no 
fraud  when  all  the  parties  interested  are  equally  informed  of  all 
the  facts  and  mutually  assent  to  them.'* 


1  Burrowes  v.  Lock,  10  Ves.  470. 

2  [1891]  3  Ch.  101;  a  case  similar 
in  its  main  features  to  Burrowes  v. 
Lock. 

3  Low  V.  Bouverie  [1891],  3  Ch.  101. 
See  the  language  of  the  court  in 
Beaupland  v.  McKeen,  2S  I^i.  l.!l  ; 
and  in  Logan  v.  Gardner,  13G  Id.  GOO. 
See,  also,  Miller's  Appeal,  84  Pa.  395; 
Putnam  v.  Tyler,  117  Id.  586;  Lam- 


mon  V.  Hartsook,  80  Mo.  13;  Robbins 
(;.  Moore,  129  111.  30;  Manufac.  Nat. 
Bank  r.  Swift,  70  Md.  515;  Schultz  v. 
McLean,  93  Cal.  329;  Wetmore  v. 
Royal,  55  Minn.  162;  Story's  Eq. 
§  1537. 

i  Hapalee  v.  Stewart,  27  N.  Y.  310; 
Bales  V.  Perry,  51  Mo.  449;  Hepbuin 
V.  McDowell,  17  S.  &  R.  383;  Richards 
('.  Railroad  Co.,  137  Pa.  531;  Wallis 


446 


EQUITABLE    ESTOPPEL;   ELECTION. 


[part  II. 


This  rule,  moreover,  has  been  applied  where  the  knowledge 
is  that  of  an  agent,  and  although  the  principal  may  be  ignorant 
of  the  facts. ^ 

Where  the  facts  are  known  to  both  parties,  the  statement 
of  an  opinion  upon  a  question  of  law  will  not  work  an  estoppel.^ 

And  the  same  mle  applies  where  both  parties  have  equal 
means  of  ascertaining  the  facts.^ 

290.  luteutiou  that  conduct  should  be  acted  on  must  exist. 

The  party  against  whom  an  estoppel  is  alleged  must  intend 
that  his  conduct  should  be  acted  upon,  although  he  may  not 
have  intended  to  deceive."* 

If  there  is  no  intention  that  the  conduct  should  be  an  induce- 
ment to  the  action  of  others,  there  can  be  no  estoppel  by  such 
conduct.^  On  the  other  hand,  if  there  is  an  intention  that  the 
representation  shall  be  relied  upon  by  the  other  party,  there 
will  be  an  estoppel,  although  the  representation  may  have  been 
innocently  made,  and  without  an  intention  to  deceive.* 


V.  Truesdell,  6  Pick.  455;  Whitney  ik 
Holmes,  15  Mass.  152;  Welland  v. 
Hathaway,  8  Wend.  480-2;  Lewis  v. 
Ford,  67  Ala.  143;  Stanton  r.  Mfg. 
Co.,  90  Mich.  12;  Estis  v.  Jackson,  111 
N.  C.  145;  Western  Land  Association 
V.  Banks,  SO  Minn.  317. 

In  order  to  create  an  (;stoppel  in 
pais  the  party  pleading  it  must  not 
only  have  been  misled,  but  he  must 
also  have  suffered  a  loss  of  a  sub- 
stantial character,  or  have  been  in- 
duced to  alter  his  position  for  the 
worse  in  some  materifil  respect. 
Where  a  purchaser  of  real  estate  at  a 
sheriff's  sale  avers  that  he  was  in- 
duced to  buy  the  property  by  a 
statement  made  to  him  by  a  mort- 
gagee of  the  property  that  the  lien 
of  the  mortgage  had  been  released, 
he  cannot  establish  an  estoppel 
against  the  mortgagee  unless  he 
shows  by  evidence  of  a  clear  and  con- 
vincing clviracter  not  only  that  the 
statement  averred  was  made  to  him, 
but  also  that  he  sustained  a  loss  by 
relying  upon  it.  Schwab  v.  Edge, 
214  Pa.  602. 


1  Davis  V.  Kneale,  97  Mich.  72. 

2  Sturm  V.  Boker,  150  U.  S.  312. 

3  Debenture  Co.  v.  Hopkins,  63 
Kan.  678. 

<  Freeman  v.  Cooke,  2  Exch.  653; 
In  re  Bahia  &  San  Francisco  Ry.,  L. 
R.  3  Q.  B.  584;  East  on  v.  London, 
etc.,  Bank,  34  Ch.  D.  95;  Wheeler  v. 
Campbell,  68  Vt.  98;  Beals  v.  Cone, 
27  Colo.  473.  But  see  Griffeth  r. 
Brown,  76  Cal.  260.  As  to  what  is 
meant  by  intention  that  conduct 
shall  be  acted  upon  in  estoppel,  see 
Tiffany  v.  .\nderson,  55  la.  405; 
Ford  r.  Fellows,  34  Mo.  App.  630. 

^  Holdaue  v.  Cold  Spring,  21  N.  Y. 
474;  Mayenborg  v.  Haynes,  50  Id. 
675;  N.  Y.  Rubber  Co.  v.  Rothery, 
107  Id.  310;  Kuhl  v.  Mayor  of  Jersey 
City,  23  N.  J.  Eq.  84;  Wheeler  v. 
Campbell,  68  Vt.  98;  Scott  v.  Moore, 
98  Va.  668;  Atkinson  v.  Plum,  50 
W.  Va.  104;  Porter  v.  Hardy,  10 
N.  Dak.  551;  Kirchman  v.  Standard 
Coal  Co.,  112  la.  668;  Laing  v.  Evans, 
64  Neb.  454. 

fi  In  re  Bahia  &  San  Francisco  Ry., 
L.  R.  3  Q.  B.  584;  Mills  v.  Fox,  37 


CH.  IV.] 


EQUITABLE    ESTOPPEL;   ELECTION. 


447 


The  only  exceptions  to  the  rule  as  above  stated  appear  to  be 
the  cases  of  Cornish  v.  Abington/  and  Manufacturers'  Bank  v. 
Hazard,^  in  which  it  was  held  that  parties  were  estopped  who 
had  no  intention  whatever  that  their  action  should  be  rehed 
upon  by  others.  But  these  cases  seem  referable  to  the  ground 
of  negligence. 

291.  Estoppel  must  be  actually  produced  by  the  conduct. 

It  is  essential  to  an  estoppel  that  it  should  be  acted  upon; 
that  is  to  say,  the  conduct  which  is  alleged  to  have  produced 
an  estoppel  must  actually  have  been  the  inducing  cause  for 
the  action  of  the  party  who  seeks  to  set  it  up.^  This  may  be 
illustrated  by  cases  of  dedication.  If  a  man  dedicates  real  es- 
tate to  public  use,  it  is  with  the  understanding  that  such  dedi- 
cation shall  be  accepted  and  acted  upon  by  the  public.  If  the 
public  fail  to  act  upon  the  dedication,  there  can  be  no  estoppel; 
for  if  no  such  action  has  taken  place,  it  will  be  considered  that 
the  offer  of  dedication  has  not  been  accepted,  and  that,  there- 
fore, no  estoppel  has  ensued.'*  On  the  other  hand,  if  the  dedi- 
cation has  been  acted  upon,  this  will  be  deemed  an  acceptance 
of  the  offer  to  dedicate,  and  the  change  in  the  position  of  the 
parties  thus  gives  a  contractual  character  to  the  admission  which 
it  woidd  not  otherwise  possess.^ 

Many  other  instances,  also,  may  be  found  in  the  books  which 
are  illustrative  of  the  same  principle,  viz.,  that  an  estoppel  nmst 
be  acted  upon,  or,  in  other  words,  that  the  party  setting  up  the 
estoppel  must  have  sustained  actual  damage.*^ 


Ch.  D.  15.3;  Continental  Nat.  Bank  v. 
Nat.  Bank  of  the  Comm.,  50  N.  Y. 
575;  Gilbert  v.  Groff,  28  Hun,  50; 
Kirk  1'.  Hartman,  63  Pa.  106;  Bid- 
well  V.  Pittsburg,  85  Id.  417. 

14  Hurl.  &  N.  549.  See,  also, 
Tobias  v.  Josiah  Morris  &  Co.,  126 
Ala.  535;  Mercantile  Co-operative 
Bank  v.  Brown,  96  Va.  614;  Smith  v. 
Boyd,  162  Mo.  146. 

2  30  N.  Y.  226;  Horn  v.  Cole,  51 
N.  H.  287;  Big.  on  Est.  631  et  seq.  (5th 
ed.);  Marine  Iron  Works  v.  Wiess, 
148  Fed.  Rep.  145. 

3  State  V.  Laies,  52  Mo.  396;  Van 
Deusen  v.  Sweet,  51  N.  Y.  378;  N.  Y. 
Rubber  Co.  v.  Rothery,  107  Id.  310; 


O'Mulcahy  v.  Holly,  28  Minn.  31; 
Monks  V.  Belden,  80  Mo.  639;  Sen- 
singer  V.  Boyer,  153  Pa.  628;  Ander- 
son V.  Walker,  93  Tex.  119;  Nat 
Bank  r.  Bielharz,  94  Id.  493;  Repass 
V.  Richmond,  99  Va.  508;  Smith  v 
Brown,  4  Ariz.  358;  Parkey  v.  Ram- 
sey, 111  Tenn.  302. 

4  Baker  r.  Johnston,  21  Mich.  319 
Hague  V.  West  Hoboken,  23  N.  J.  Eq 
354. 

5  Wharton  on  Evidence,  §  1152. 

6  Howard  v.  Hudson,  2  El.  &  B.  1 
Stimson  v.  Farnham,  L.  R.  7  Q.  B 
175;  Hill  V.  Epley,  31  Pa.  334;  Patter- 
son  V.   Lytle,    11   Id.   53;   Musser   » 
Oliver,  21  Id.  362;  Troxell  v.  Lehigh 


EQUITABLE    ESTOPPEL)   ELECTION. 


[part  II. 


292.  Estoppel  is  limited  to  the  representations  made. 

It  is  important  to  consider  to  vvliat  extent,  against  whom, 
and  in  whose  favor  an  estoppel  may  operate. 

It  is  a  sound  and  just  rule  that  the  estoppel  will  be  limited 
to  the  representation  made.  Thus,  where  a  sheriff  had  a  writ 
against  A.,  but  took  B.  into  custody  upon  the  false  representa- 
tion by  B.  that  she  was  the  party  named  in  the  writ,  but  de- 
tained her  in  custody  after  notice  that  she  was  not  the  party 
intended,  it  was  held  that,  although  B.  might  be  estopped  from 
recovering  damages  for  a  false  arrest,  she  would  not  be  estopped 
from  an  action  for  the  subsecjuent  detention.  The  estoppel 
could  not  operate  to  justify  the  detention,  for  after  notice  that 
B.  was  not  the  real  party  the  sheriff  was  no  longer  deceived  by 
the  representation.^ 

An  estoppel  must  be  mutual.  One  who  is  not  bound  by  it 
cannot  take  advantage  of  it.^ 


293.  Estoppels  in  the  cases  of  married  women  and  infants. 

It  is  sometimes  difficult  to  determine  whether  estoppel  by 
conduct  will  operate  against  married  women  and  infants;  and 
the  cases  on  this  subject  are  to  a  certain  extent  conflicting.^ 
The  true  rule  seems  to  be  this:  The  contract  of  a  person  under 
disability  cannot  be  made  good  by  estoppel.  Thus,  if  a  married 
woman  entered  into  an  agreement  (which,  being  made  by  a 
married  woman,  is  void)  for  the  sale  of  real  estate,  the  circum- 
stance that  the  purchaser  went  into  possession  under  the  con- 
tract, and  made  valuable  improvements  with  the  consent  and 
encouragement  of  the  feme,  would  not  operate  to  estop  the 
latter,  because,  as  no  remedy  could  possibly  be  had  upon  the 
void  contract,  it  would  be  against  the  policy  of  the  law  to  allow 


Crane  Iron  Co.,  40  Id.  31  o;  Ayres  v. 
Wattson,  57  Id.  360;  Railroad  Co. 
V.  Dubois,  12  Wall.  47.  See,  also, 
Barker  v.  Binninger,  14  N.  Y.  270; 
Malloney  r.  Horan,  49  Id.  Ill;  Riv- 
ard  V.  Gardiner,  39  111.  125;  Schmaltz 
V.  Avery,  16  Q.  B.  655;  Helme  v. 
Philadelphia  Life  Ins.  Co.,  61  Pa. 
107;  Lingonner  v.  Amhl«>r,  44  Neb. 
316;  Mason  v.  City  of  Chicago,  163 
111.  351;  State  Savings  Bank  v. 
Montgomery,  126  Mich.  327;  Murray 
V.  Rugg,  116  Id.  519;  Wharton's  Evi- 


dence, §§  1150,  1155;  Citizens'  Bank 
r.  Burrus,  178  Mo.  716. 

1  Dunston  v.  Paterson,  2  C.  B. 
(x.  s.)  495;  Tilton  v.  Nelson,  27  Barb. 
595;  Murray  v.  Jones,  50  Ga.  109; 
Bigelow  on  Estoppel,  582  (5th  ed.). 

2C.  &  A.  R.  R.  V.  Keegan,  1.52  111. 
413;  Spinney  v.  Downing,  108  Cal. 
666.  See,  also,  Geiler  v.  Littlefield, 
148  N.  Y.  603. 

3  Bigelow  on  Estoppel,  599  et  seq. 
(5th  ed.). 


CH.  IV.] 


EQUITABLE    ESTOPPEL!    ELECTION, 


449 


the  same  result  to  be  reached  through  the  indirect  medium  of 
an  estoppel.'  Nor  would  the  case  of  the  purchaser  be  made 
any  better  if  the  woman  had  represented  herself  to  be  sole. 

Such  a  representation  could  amount  to  no  more  than  a  cove- 
nant that  she  was  sole,  and  her  coverture  would  render  such  a 
covenant,  as  well  as  all  others,  void.- 

But  while  an  estoppel  could  not  have  the  effect  of  rendering 
a  married  woman's  contract  valid,  it  might,  nevertheless,  in  the 
absence  of  any  agreement,  operate  to  prevent  her  from  asserting 
a  right.  Thus,  if  a  married  woman  were  to  encourage  A.  to  buy 
property  of  B.,  knowing  that  the  title  was  not  in  B.,  but  in  her- 
self, she  would  be  estopped  from  subsequently  asserting  her 
title  against  A.,  for  in  this  case  there  would  be  no  attempt  to 
enforce  a  contract  of  the  married  woman,  either  directly  or  in- 
directly, and,  therefore,  there  would  be  no  reason  for  not  ap- 
plying the  ordinary  doctrine  of  estoppel."''  And  so,  also,  it  has 
been  held  that  where  a  married  woman  allows  stock,  bought 
with  her  money,  to  stand  in  her  husband's  name  in  order  to 
give  him  a  credit,  she  would  be  estopped  from  asserting  her 
ownership  as  against  his  creditors."* 


1  Drury  v.  Foster,  2  Wall.  24; 
Lowell  V.  Daniels,  2  Gray,  161 ;  Berais 
V.  Call,  10  Allen,  512;  Merriam  v. 
Boston  R.  Co.,  117  Mass.  241;  Nat. 
Granite  Bank  v.  Tyndale,  176  Id. 
547;  Glidden  v.  Strupler,  52  Pa.  400; 
Rumfelt  V.  Clemens,  46  Id.  455;  Keen 
V.  Coleman,  39  Id.  29*J;  Keen  v.  Hart- 
man,  48  Id.  497;  Williams  v.  Baker, 
71  Id.  476;  Innis  v.  Templeton,  95 
Id.  262;  Davison's  Appeal,  Id.  394; 
Grim's  Appeal,  105  Id.  385;  Stivers 
V.  Tucker,  126  Id.  74;  Morrison  v. 
Wilson,  13  Cal.  494;  Rangeley  v. 
Spring,  21  Me.  130;  Concord  Bank  v. 
Bellis,  10  Cush.  276;  Miles  v.  Linger- 
man,  24  Ind.  385;  Kane  Co.  v.  Her- 
rington,  50  111.  232;  Schnell  v.  Chi- 
cago, 38  Id.  382;  Davidson  v.  Young, 
Id.  146;  McLauren  r.  Wilson.  16  S.  C. 
402;  Dobbin  v.  Cordiner,  41  Minn. 
165;  Daniel  v.  Mason,  90  Tex.  240; 
Smith  V.  Ingram,  132  N.  C.  959. 

2  Liverpool  Ass'n   v.   Fairhurst,   9 

29 


Ex.  422;  Buchanan  v.  Hubbard,  96 
Ind.  1. 

'■>  Connolly  v.  Branstler,  3  Bush, 
702;  Drake  v.  Glover,  30  Ala.  382; 
McCuUough  V.  Wilson,  21  Pa.  436; 
Couch  V.  Sutton,  1  Gr.  Cas.  114; 
Brinkerhoff  v.  Brinkerhoff,  23  N.  J. 
Eq.  477,  483;  Carpenter  v.  Carpenter, 
25  Id.  194;  Stout  v.  Allison,  15  Brad. 
222;  Hendershott  v.  Henry,  63  la. 
744.  See  Bennett  v.  Strait,  Id.  620; 
Jackson  v.  Torrence,  83  Cal.  521; 
Gray  v.  Crockett,  35  Kan.  66;  Gal- 
braith  v.  Lunsford,  87  Tenn.  89; 
Government  Building  Institution  v. 
Denny,  154  Ind.  261;  Magel  /'.  Mil- 
ligan,  150  Ind.  582,  and  Johnson  v. 
Mutual  Life  Ins.  Co.,  113  Ky.  871. 

^  Hamlen's  Admr.  v.  Bennett,  52 
N.  J.  Eq.  70;  Mertens  r.  Schlemme, 
68  N.  J.  Eq.  544;  Cowling  v.  Hill,  69 
Ark.  350;  Locklin  v.  Davis,  71  Vt. 
321;  Galvin  v.  Britton,  151  Ind.  1. 


450  EQUITABLE    ESTOPPEL;   ELECTION.  [PART  II. 

Still  more  does  the  same  rule  apply  to  the  conduct  of  an  in- 
fant whereby  he  permits  or  encourages  a  purchaser  to  buy  an 
estate  of  another.  Under  such  circumstances,  the  infant  will 
be  equitably  estopped  from  asserting  his  right  to  the  estate.^ 
After  coming  of  age,  an  infant  may  affirm  his  deed  by  much 
less  formal  acts  than  would  be  sufficient  to  avoid  it ;  and  clearly 
by  any  act  which  amounts  to  an  estoppel.' 

But,  on  the  other  hand,  where  the  attempt  is  made  to  en- 
force a  contract  of  a  minor  through  the  agency  of  estoppel,  such 
an  attempt  will  fail,  just  as  in  the  case  of  contracts  of  femes 
covert.^ 

An  estoppel  in  pais  does  not  operate  in  favor  of  everybody. 
It  operates  only  in  favor  of  a  person  for  whom  it  was  intended,'* 
and  who  has  been  misled  to  his  injury;  and  he  only  can  set  it 
up.^ 

294.  Estoppels  bind  parties  and  privies. 

An  estoppel  binds  not  only  parties  but  privies. 

Privies  are  of  three  Icinds — of  blood,  of  law,  and  in  estate.* 
The  application  of  the  doctrine  that  estoppels  bind  privies  is 
more  striking  in  the  case  of  estoppels  by  record  and  by  deed; 
but  it  may  be  said  that  the  same  general  rules  apply  to  estoppels 
by  conduct,  and  that  persons  may  be  precluded  from  asserting 
rights  by  the  speech,  the  silence,  or  the  action  of  those  as  to 
whom  they  may  have  "mutual  or  successive  relationship  to  the 
same  rights  of  property.'"''  But  a  privy  in  estate  may  be  re- 
lieved from  the  effect  of  an  estoppel,  if  he  fills  the  position  of 

1  Overton  v.  Banister,  3  Hare,  503;  has  been  held  that,  in  some  cases, 

Thompson  v.  Simpson,  2  Jon.  &  L.  equity  will  refuse  its  aid  to  cancel  the 

110;  Stikeman  v.  Dawson,  1  De  G.  &  deed.     Ryan  v.  Growney,   125  Mo. 

S.   90;   Esron   v.    Nicholas,   Id.    118;  474. 

Wright  V.  Snowe,  2  Id.  321;  Unity  Urish-Am.    Bank  v.   Ludlum,    49 

Ass'n   V.   King,    3   De   G.   &   J.   64;  Minn.  344. 

Nelson  v.  Stocker,  4  Id.  458;  Hall  v.  5  Ketchum  v.  Duncan,  96  U.  S.  696. 

Timmons,  2  Rich.  Eq.  120;  Whitting-  6  Duchess   of    Kingston's   Case,    2 

ton  V.   Wright,    9   Ga.    23;    Gihon's  Sm.  Lead.  Cas.  658,  and  notes. 
Estate,    15   Phila.    582;    Bigelow  on  ^  Bigelow  on   Estop.   345  et  seq.; 

Estoppel,  606  et  seq.  (5th  ed.);    Os-  Wood  r.  Seely,  32  N.  Y.  105;  Union 

trander  v.  Quin,  84  Miss.  230.  Dime  Savings  Ins.  v.  Wilmot,  94  Id. 

-'Logan  V.  Gardner,  136  Pa.  599,  221;  Parker  v.  Crittenden,  37  Conn, 

and  cases  cited  in  the  opinion.  148;  Graves  v.  Rogers,  59  N.  H.  452; 

•■i  Wieland   r.  Kobick,   110  III.   10.  Equitable  Loan  Co.  v.  Lewman,  124 

See  Burk  v.  Adams,  80  Mo.  504.    It  Ga.  190. 


CH.  IV.]  EQUITABLE    ESTOPPEL)   ELECTION.  451 

a  bona  fide  purchaser  for  value  without  notice  of  the  right  or 
title  of  the  party  in  whose  favor  the  estoppel  is  asserted.^ 

It  has  also  been  justly  observed  in  a  recent  case  in  New  York, 
that  "estoppels  operate  not  only  in  favor  of  the  party  misled  to 
his  prejudice  by  the  statement,  but  also  in  favor  of  his  privies 
in  blood  or  estate."  ^ 

An  estoppel  cannot  operate  if  the  conduct  of  the  party  against 
whom  an  estoppel  is  alleged  has  been  brought  about  by  fraud. ^ 

An  equity  akin  to  estoppel  may  be  illustrated  by  the  case  of 
the  Agra  and  Masterman's  Bank.  There  certain  parties  were 
authorized  by  a  letter  of  credit  to  draw  upon  the  bank,  and  they 
who  negotiated  the  bill  were  recjuested  to  "endorse  particulars 
upon  the  back  thereof."  Certain  bills  were  thereupon  nego- 
tiated, and  the  holders  on  proving  against  the  estate  of  the  bank, 
were  met  by  a  defence  of  a  set-oft"  claimed  against  the  parties 
to  whom  the  letter  of  credit  had  been  issued.  But  it  was  held 
that  the  bank,  by  the  terms  of  the  letter  of  credit,  had  in  effect 
invited  parties  to  negotiate  bills  on  the  faith  of  that  letter;  and 
that  it  was  not  in  accordance  with  the  doctrine  of  courts  of  equity 
to  allow  the  bank,  under  such  circumstances,  to  say  that  be- 
cause there  was  a  debt  due  to  it  from  the  persons  to  whom  it 
had  given  the  letter,  therefore  it  would  not  pay  the  bills.'* 

The  doctrine  of  estoppel  is  frequently  called  into  operation 
when  a  party  is  compelled  to  make  an  election  between  two 
inconsistent  benefits,  or  between  the  assertion  of  two  rights 
which  ought  not  to  be  insisted  on  simultaneously. 

Under  such  circumstances,  the  party  having  once  elected  is 
estopped  from  asserting  the  right  which  he  has  chosen  to  aban- 
don.^ 

295.  Election  ;  defiiiitioii  and  example. 

An  election,  in  equity,  is  a  choice  which  a  party  is  compelled 
to  make  between  the  acceptance  of  a  benefit  under  a  written 
instrument,  and  the  retention  of  some  property  already  his  own, 
which  is  attempted  to  be  disposed  of,  in  favor  of  a  third  party, 

1  Rutz  V.  Kehn,  143  111.  558.  Davis,  23  U.  S.  App.  579;  Bank  v. 

2Meeder  v.  Provident  S.  L.  Assur.  Fletcher,  68  Vt.  81. 

Soc,  171  N.  Y.  4.')'2.  ^  In    re    Agra    and     Masterman's 

3  Wilcox  V.  Howill,  44  X.  Y.  31)8;  Bank,   L.  R.  2  Ch.  391.     See  for  a 

Mallalieu  v.  Hodgson.  16  Q.  B.  680;  somewhat  similar  case,  Johannessen 

Bigelow  on  Estop.  448;  McCaskill  v.  v.  Munroe,  158  X.  Y.  641. 

Sav.  Bank,  60  Conn.  300;  Brown  v.  5  Mills  v.  Hoffman,  92  N.  Y.  181; 


45^ 


EQUITABLE    ESTOPPEL;    ELECTION. 


[part  II. 


Iiy  virtue  of  the  same  paper. ^  The  doctrine  rests  upon  the  princi- 
ple that  a  person  claiming  under  any  document  shall  not  interfere 
by  title  paramount,  to  prevent  another  part  of  the  same  docu- 
ment from  having  effect  according  to  its  construction;  he  can- 
not accept  and  reject  the  same  writing. ^  It  is  a  doctrine  which 
is  principally  applied  to  cases  of  wills;  but  it  is  applicable,  also, 
to  voluntary  deeds,  to  contracts  for  value  resting  upon  articles, 
and  to  contracts  completely  executed  by  conveyance  and  assign- 
ments.*'' 

The  most  common  instance  which  is  put  of  a  case  of  an  elec- 
tion, is  where  a  testator  gives  money  or  land  to  A.,  and  by  the 
same  will  gives  something  of  A.'s  to  B.  Here  A.  must  elect. 
He  must  either  give  effect  to  the  will  by  allowing  B.  to  have 
the  property  which  the  testator  intended  should  go  to  him; 
or,  if  he  chooses  to  disregard  the  will  and  retain  his  own  prop- 
erty, must  make  good  the  value  of  the  gift  to  the  disappointed 
beneficiary.'' 

296.  Of  two  kinds;  express  and  implied. 

Elections  are  said  to  be  of  two  kinds,  express  or  implied.^ 
An  express  election  is  where  a  condition  is  annexed  to  a  gift,  a 
compliance  with  which  is  distinctly  made  one  of  the  terms  upon 
which,  alone,  the  gift  can  be  enjoyed.  Thus,  if  a  testator  were 
to  say,  in  so  many  words,  that  a  legacy  given  by  his  will  should 
go  to  the  legatee  only  upon  the  stipulation  that  the  latter  should 
convey  a  piece  of  land,  which  was  his  own,  to  a  third  party; 
here  would  be  an  express  condition,  and  the  legatee  would  have 


Drake  v.  Wild,  70  Vt.  52;  Bigelow  on 
Estop.  67:]. 

1  Fleming's  Estate,  217  Pa.  6L5. 

2  Streatfield  v.  Streatfield,  1  Lead. 
Cas.  Eq.  333,  notes;  Codrington  v. 
Lindsay,  L.  R.  8  Ch.  578;  Stephens 
V.  Stephens,  :]  Drew.  097,  701;  Hall 
V.  Hall,  1  Bland,  l;]0;  Clay  r.  Hart, 
7  Dana,  1 ;  Brow n  v.  Ricketts,  3 
Johns.  C'h.  553;  Marriott  v.  Bad- 
ger, 5  Md.  306;  Van  Duyne  v.  Van 
Duyne,  14  N.  J.  Eq.  49;  Gable  v. 
Daub,  40  Pa.  217;  Reaves  7-.  Gar- 
rett, 34  Ala.  558;  Brown  v.  Pitney, 
39  111.  468;  Wilbanks  v.  Wilbanks, 
18  Id.  17;  O'Reilly  o.  Nicholson,  45 


Mo.  160;  Pemberton  v.  Pemberton, 
29  Id.  409;  Beetson  v.  Stoops,  186 
N.  Y.  456;  Tolley  v.  Poteet,  62  W.  Va. 
231. 

3  Codrington  v.  Lindsay,  L.  R.  8 
Ch.  587;  Anderson  v.  Abbott,  23 
Beav.  457;  Brown  v.  Brown,  L.  R. 
2  Eq.  481 ;  Willoughby  v.  Middleton, 
2  Johns.  &  H.  344;  Barrier  v.  Kelly, 
82  Miss.  233. 

4  Glenn  v.  Clark,  21  Gratt.  35; 
.\llen  i;.  Boomer,  82  Wis.  364;  Drake 
V.  Wild,  70  Vt.  52. 

5  Hall  V.  Hall,  2  McCord  Ch.  269, 
306;  Kevan's  Appeal,  194  Pa.  135. 


CH.  IV.] 


EQUITABLE   ESTOPPEL;   ELECTION. 


453 


to  choose  or  elect  between  the  legacy  and  the  land.  If  he  re- 
fused to  convey  the  land,  he  would  simply  forfeit  his  legacy. 
But  in  the  case  stated  in  the  preceding  section,  the  duty  to  elect 
would  not  grow  out  of  any  express  condition,  but  would  be  im- 
pliedly annexed  by  the  law,  imder  the  general  principle  that  a 
man  shall  not  be  allowed  to  claim  the  benefit  of  any  instrument 
unless  he  is  willing  to  carry  out  all  its  provisions.  An  ecjuitable 
election  differs  from  an  election  growing  out  of  an  express  con- 
dition in  this,  viz.,  that  in  express  conditions  the  result  of  a  non- 
compliance is  a  forfeiture;  whereas  in  elections  growing  out  of  an 
implied  duty,  the  person  who  declines  to  make  good  the  gift  in 
specie,  does  not  absolutely  lose  the  benefit  which  is  bestowed 
ujion  him,  but  is  compelled  only  to  give  up  so  much  of  it  as  will 
amount  to  compensation  for  the  disappointed  beneficiary.^ 

297.  Importance  of  the  distinction  between  the  two. 

The  distinction  between  express  and  implied  elections  be- 
comes of  practical  importance  when  the  doctrine  of  election  in 
equity  is  attempted  to  be  applied  to  the  case  of  void  devises. 
For  example:  If  a  statute  were  to  require  that  wills  of  real  estate 
should  be  executed  with  certain  formalities,  and  a  testator  were 
to  make  his  will,  not  executed  so  as  to  pass  real  estate,  whereby 
he  should  give  a  legacy  to  his  heir"  upon  the  express  condition 
that  the  latter  would  make  good  a  devise  of  real  estate  to  a 
stranger,  it  is  obvious  that  the  devisee  of  the  real  estate  would 
take  no  good  title  from  the  testator  because  of  the  informality 
in  the  execution  of  the  will,  but  the  heii-  would  nevertheless  be 
obliged  to  release  to  the  stranger,  otherwise  he  would  forfeit  his 
claim  to  the  legacy. - 

But,  on  the  other  hand,  if  the  bequest  to  the  heir  were  not 
made  on  this  express  condition,  then  the  mere  fact  that  the 
realty  was  devised  to  a  stranger  would  not  put  the  heir  to  his 


1  Gretton  v.  Haward,  1  Swanst. 
43.3.  In  his  note  to  this  case  Mr. 
Swanston  says  that  there  are  two 
propositions  estabhshed  by  the  au- 
thorities: 1st.  That  in  the  event  of 
election  to  take  against  the  instru- 
ment, courts  of  equity  assume  juris- 
diction to  sequester  the  benefit  in- 
tended for  the  refractory  donee,  in 
order  to  secure  compensation  to  those 


whom  his  election  disappoints;  and, 
2d.  That  the  surplus  after  compensa- 
tion does  not  devolve  as  undisposed 
of,  but  is  restored  to  the  donee,  the 
purpose  being  satisfied  for  which 
alone  the  court  contrplled  his  legal 
right.     See  post,  §  305. 

2  Nutt  V.  Nutt,  I  Freem.  Ch.  (Miss.) 
128. 


4r)4 


EQl'ITAHLE    ESTOPPEL;   ELECTION. 


[part  II. 


election;  Ix^eaiise,  in  the  case  supposed,  there  would,  in  point  of 
fact,  have  been  no  valid  gift  to  the  stranger,  and  there  can  be 
no  election  unless  there  are  two  gifts. ^  The  distinction,  there- 
fore, between  elections  which  depend  upon  the  expressed  inten- 
tion of  the  testator,  and  those  which  depend  upon  his  presimied 
intention,  is  not  unfrequently  of  practical  importance. 

Exactly  why  this  distinction  should  have  been  taken  has  been 
not  a  little  questioned.  Lord  Eldon  in  Sheddon  v.  Goodrich" 
characterized  it  as  one  ''such  as  the  mind  cannot  well  fasten 
upon,"  and  other  judges  have  expressed  the  same  difficulty/' 
Nevertheless  it  is  firmly  established,  and  has  been  recognized 
in  the  courts  of  this  country  as  well  as  in  those  of  England.^  The 
inclination  of  the  courts,  however,  is  manifestly  to  limit  the 
distinction,  and  to  })ut  express  and  implied  conditions,  in  this 
regai'd,  u])on  the  same  footing.^ 

The  doctrine  of  election  is  applicable  to  remote  and  contingent 
interests,  as  well  as  to  those  which  are  immediate  and  certain.*^ 


298.  Circumstances  iiiuler  which  the  doctrine  of  election 
arises  ;  illustrations. 

In  order  that  the  necessity  for  an  election  shall  take  place, 
the  testator  must  affect  to  dispose  of  property  w^hich  is  not  his 
own,^  and  he  nmst,  also,  make  a  valid  gift  of  his  own  property. 
If  both  of  these  requisites  do  not  occur,  there  is  no  case  for  an 
election.* 


1  See  Melcher  v.  Burger,  1  Dev.  & 
Bat.  Eq.  6.'M;  Snelgrove  v.  Snelgrove, 
4  Dess.  274;  .Jones  v.  ,Jon(!S,  S  Gill. 
197. 

2  8  Ves.  497.  See,  also,  the  re- 
marks of  the  same  chancellor  in  Ker 
V.  Wauchope,  1  Bligh,  1. 

3  Gary  v.  Askew,  1  Cox,  241 ;  Brodie 
V.  Barry,  2  Ves.  &  Beam.  127;  City  of 
Philadelphia  v.  Davis,  1  Whart.  510 
Van  Dyke's  Appeal,  GO  Pa.  488-489 

4  McElfresh  v.  Schley,  1  Gill,  181 
Kearney  v.  Macomb,  16  N.  J.  Eq.  189 
Dewar  v.  Maitland,  L.  R.  2  Eq.  834 
Orrell  v.  Orrell,  L.  R.  6  Ch.  302. 

5  Van  Dyke's  Appeal,  60  Pa.  490. 
And  see,  particularly,  Cummings's 
Appeal,  153  Pa.  397-399. 

«  Webb  V.  Shaftesbury,  7  Ves.  480; 


McQueen  v.  McQueen,  2  Jon.  Eq. 
16.  Where  a  mother  conveyed  land 
to  a  daughter  in  fee,  subject  to  a  life 
estate  in  her  own  favor  and  later  de- 
vised all  her  property,  including  that 
conveyed,  to  her  daughter  for  life, 
the  daughter  was  put  to  an  election 
as  to  whether  she  would  accept  the 
property  under  the  deed,  or  under 
the  will.  Morrison  v.  Fletcher,  119 
Ky.  488. 

7  See  Box  v.  Barrett,  L.  R.  3  Eq. 
244;  Smith  v.  Butler,  83  Tex.  126; 
Cameron  v.  Parish,  155  Ind.  329; 
Young  V.  Biehl,  166  Ind.  357. 

8  The  property  must  be  described. 
General  words,  referring  to  all  of  the 
testator's  estate,  will  not  do.  Tomp- 
kins V.  Merriman,  155  Pa.  440. 


J 


CH.  IV.]  EQUITABLE    ESTOPPEL)   ELECTION.  455 

Two  classes  of  cases  have,  not  unfrequently  arisen  by  which 
both  branches  of  this  rule  are  illustrated . 

The  first  of  these  arises  when  a  widow,  to  whom  a  legacy  has 
been  given  by  her  husband,  claims  dower  out  of  the  real  estate 
devised.  On  the  one  hand,  if  the  terms  of  the  devise  are  such 
that  they  can  only  be  satisfied  by  giving  the  devisee  the  land 
free  from  dower,  the  widow  must,  in  this  case,  elect  whether  she 
will  have  her  dower  or  her  legacy.^  This  is  a  plain  case  of  elec- 
tion. The  husband  has  no  power  to  give  away  his  wife's  dower, 
and  all  devises  must  ordinarily  be  subject  to  her  right.  But  if 
the  widow  wishes  to  have  the  legacy,  she  cannot  claim  a  benefit 
under  the  will,  without  also  being  compelled  to  make  good  its 
provisions  by  which  her  dower  in  the  realty  is  given  to  a  stranger. 

On  the  other  hand,  a  mere  devise  of  real  estate  to  a  stranger, 
and  a  legacy  to  the  wife,  will  not  put  the  latter  to  her  election; 
for  it  may  be  very  possible  that  the  testator  intended  her  to 
have  a  double  benefit,  and  that  the  devise  was  designed  to  be 
subject  to  the  burden  of  dower."  Here  is  a  case  in  which  the 
testator  cannot  necessarily  be  said  to  have  attempted  to  dispose 
of  another's  property,  i.  e.,  his  wife's  dower;  because  no7i  constat 
that  he  ever  so  designed  to  do.  In  such  a  case,  therefore,  there 
is  no  election.  Between  these  two  plain  cases,  however,  a  great 
many  have  arisen  where  the  discovery  of  the  intention  of  the 
testator  is  exceedingly  difficult.^ 

The  inquiry  always  is,  however,  did  the  testator  intend  to 
give  away  his  wife's  interest  in  the  realty?  If  he  did,  then  she 
must  elect.  If  he  did  not,  then  there  is  nothing  to  prevent  her 
from  claiming  her  legacy  under  the  will,  and  at  the  same  time 
asserting  her  right  to  the  dower,  as  against  the  devisee.'* 

299.  After-acquired  lands. 

Another  class  of  cases  is  where  there  is  a  devise  of  after- 
acquired  lands  which  do  not  jjass  by  effect  of  the  devise,  but  to 
the  value  of  which  the  devisee  may  nevertheless  become  entitled 

1  Butcher  v.  Kemp,  5  Mad.  61 ;  Bir-  370;  Lord  v.  Lord,  23  Conn.  327;  Hall 
mingham  v.  Kirwan,  2  Sch.  &  L.  444;  v.  Hall,  8  Rich.  (Law)  407;  Norris  v. 
Llewellyn  v.  Mackworth,  Barnard.  Clark,  10  N.  J.  Eq.  51;  1  Lead.  Cas. 
Ch.  R.  5;  Bacon  v.  Cosby,  4  De  G.  &  Eq.  410  (Am.  notes). 

Sm.  261.  3  See    Lawrence    v.    Lawrence,    2 

2  Adsit  V.  Adsit,  2  Johns.  Ch.  448;      Vern.  366. 

Brown  v.  Caldwell,  1  Speer's  Eq.  322.  <  Ellis  v.  Lewis,  3  Hare,  310;  Pern- 

See,  also,  Herbert  v.  Wren,  7  Cranch,      berton  v.  Pemberton,  29  Mo.  408. 


456  EQUITABLE    ESTOPPEL;   ELECTION.  [PART  11. 

by  the  doctrine  of  election.  It  is  well  known  that  by  the  Eng- 
lish law  a  will,  as  to  realty,  spoke  from  its  date,  and  did  not, 
therefore,  pass  after-acquired  lands,  ^^'hen,  therefore,  a  testator 
devised  lands,  of  which  he  afteiwards  became  the  owner,  away 
from  the  heir,  and  by  the  same  will  gave  the  heir  a  benefit,  a 
case  for  election  arose. 

The  rule  has  by  some  authorities  been  supposed  to  be  differ- 
ent. The  case  of  a  devise  of  after-acquired  realty  was  supposed 
to  fall  under  the  same  rule  as  a  void  devise,  that  is  (for  example), 
a  devise  by  an  infant,  by  a  will  not  didy  executed,  or  the  like.^ 
But  it  has  been  justly  pointed  out  that  there  is  a  distinction  be- 
tween a  devise  which  is  entirely  void  by  reason  of  the  incom- 
petency of  the  party  attempting  to  make  it,  or  by  reason  of  the 
invalidity  of  the  instrument,  and  a  devise  which  simply  fails 
because  the  subject-matter  is  not  capable  of  being  disposed  of 
by  the  testator.  The  latter  falls  clearly  within  the  case  of  an 
attempt  to  dispose  of  property  of  which  the  testator  is  not  the 
owner,  and,  therefore,  presents  a  strict  case  for  an  election. - 

It  will  be  remembered  that  if  the  bequest  to  the  heir  is  coupled 
with  a  direct  stipulation  that  he  shall  give  effect  to  a  devise  of 
after-acquired  land,  it  will  fall  under  the  head  of  express  con- 
ditions,' and  will  be  enforced  under  the  doctrine  of  forfeiture,  and 
not  under  that  of  equitable  election,  as  was  stated  above. 

300.  Powers. 

Another  case  of  election  sometimes  arises  under  powers.  If, 
for  example,  A.  has  a  power  of  appointment  in  favor  of  B.,  and 
in  default  thereof  the  property  is  limited  to  C,  and  A.  exercises 
the  power  in  favor  of  D.,  and  by  the  same  instrument  gives  a 
benefit  to  C,  the  latter  must  be  put  to  his  election.  If  he  claims 
under  the  instrument,  he  must  give  effect  to  the  defective  execu- 
tion of  the  power.  If  he  claims  adversely  to  the  instrument, 
he  must  compensate  the  disappointed  appointee  out  of  the  benefit 
which  the  instrument  confers  upon  him.^ 

1  See  Hearle  v.  Greenbank,  3  Atk.  (where  the  opinion  of  the  court  in  the 
695;  1  Ves.  Sr.  298;  Rich  v.  Cockell,  City  of  Philadelphia  v.  Davis,  1 
9  Ves.  369;  Sheddon  v.  Goodrich,  8  Whart.  490,  is  criticised);  McElfresh 
Id.  481;  Van  Dyke's  Appeal,  60  Pa.  v.  Schley,  2  Gill,  181;  Kearney  v. 
481.  Macomb^  16  N.  J.  Eq.  189;  Maxwell 

2  Schroder  r.  Schroder,  1  Kay,  578;  v.  Maxwell,  2  De  G.,  M.  &  G.  705. 
Hance  v.  Truwhitt,  2  Johns.  &  H.  See  Orrell  r.  Orrell,  L.  R.  6  Oh.  303. 
216;  American  note  to  Streatfield  3  2  Sug.  Pow.  148;  note  to  Streat- 
V.  Streatfield,  1   Lead.  Cas.  Eq.  333  field  v.  Streatfield,  1  Lead.  Cas.  Eq. 


I 


CH.  IV.]  EQUITABLE    ESTOPPEL;   ELECTION.  457 

So,  also,  if  there  is  a  power  to  appoint  to  two,  and  the  donee 
of  the  power  appoints  to  one  only,  and  gives  a  legacy  to  the 
other,  he  cannot  claim  the  legacy  and  also  dispute  the  validity 
of  the  appointment.^  But  where  a  testatrix  made  an  appoint- 
ment under  a  power  in  favor  of  her  son,  which  partially  failed 
for  remoteness,  and  made  a  general  residuary  appointment  under 
the  power  to  her  daughters,  to  whom  certain  other  benefits  were 
also  given;  it  was  held  that  the  daughters  might  claim  the 
benefit  of  the  appointment  which  had  failed,  without  being  put 
to  their  election  in  regard  to  their  legacies.'  The  reason  of  this 
decision  was,  that  the  daughters  claimed  the  benefit  of  the 
appointment  which  had  failed,  not  as  persons  who  took  in  de- 
fault of  a  proper  execution  of  the  power,  but  under  the  general 
residuary  appointment;  in  other  words,  they  claimed  this  fund, 
as  well  as  the  legacy,  under  the  will,  and  not  by  any  title  ad- 
verse to  the  will;  hence  there  was  no  room  for  the  doctrine  of 
election.  The  rule  as  to  election  is  to  be  applied  only  as  be- 
tween a  gift  under  a  will  and  a  claim  dehors  the  will  and  ad- 
verse to  it,  and  is  not  to  be  applied  as  between  one  clause  in  a 
will  and  another  clause  in  the  same  will.^  Where  a  person  ap- 
points to  the  object  of  the  power,  and  gives  him  a  legacy,  and 
then  directs  him  to  settle  the  appointed  property  on  persons 
who  are  not  the  objects  of  the  power,  a  case  of  election  is  not 
raised,  unless  there  is  a  clause  of  forfeiture  on  non-compliance 
with  the  directions.^ 

301.  Donor  must  give  property  of  his  own. 

It  was  stated  above,  that  one  of  the  two  re(iuisites  necessary 
to  give  rise  to  a  case  of  election  was  that  the  donor  should  give 
property  of  his  own. 

This  may,  also,  be  illustrated  by  a  reference  to  the  execution 
of  powers.  If  A.  has  a  power  of  appointment  among  B.,  C, 
and  D.,  in  default  of  the  due  execution  of  which  B.  is  entitled  to 

351;  Whistler  v.  Webster,  2  Ves.  Jr.  2  Wollaston  v.  King,  L.  R.  8  Eq. 

:i67;  Coutts  V.  Acworth,  L.  R.  9  Eq.  165.     See  Wallinger  v.  Wallinger,  9 

519.    See,  also,  Blackett  v.  Lamb,  14  Id.  301. 

Beav.  482,  and  the  criticism  in  Snell's  3  Per  James,  V.  C,  in  Wollaston 

Eq.  174.  r.  King,  L.  R.  8  Eq.  174. 

1  In  re  Fowler's  Trust,   27   Beav.  *  King    v.    King,    15   Ir.    Ch.   479, 

362;  Woolridge  v.  Woolridge,  Johns.  overruling    Moriarty  v.  Martin,  3  Id. 

63;  Churchill  v.  Churchill,  L.  R.  5  Eq.  26. 
44;  2Spence,  520;  2  Sug.  Pow.  148. 


458 


KQUITARLR   ESTOPPEL;   ELECTION, 


[part  IL 


take;  and  A.  exercises  the  power  validly  as  to  B.,  but  in  validly 
as  to  C.  and  D.;  B.  is,  nevertheless,  entitled  to  make  good  his 
claim  in  default  of  the  proper  execution;  because  the  benefit 
that  he  receives  by  virtue  of  the  appointment  is  not  a  benefit 
fed  (so  to  speak)  out  of  property  belonging  to  A.,  but  is  derived 
from  that  in  which  A.  has  no  ownership,  but  only  a  power  of 
appointment.' 

302.  Property  of  the  donee  must  be  also  given. 

Nor  will  a  person  be  compelled  to  elect  unless  his  property  is 
attempted  to  be  disposed  of  by  the  testator.  Thus,  where  a 
testator  assumed  to  dispose  of  the  whole  of  a  fund  by  virtue  of 
a  power  in  a  settlement,  and  appointed  a  moiety  thereof  to  C, 
and  the  other  moiety  to  S.,  whose  wife  was  in  fact  entitled  to 
a  moiety  under  the  settlement,  and  S.'s  wife  subsequently  died, 
and  S.  administered  upon  her  estate,  it  was  held  that  there  was 
no  case  for  an  election,  because  the  gift,  under  the  will,  was  to 
him  in  his  own  right,  and  his  claim  adversely  to  the  will  was  as 
the  representative  of  his  wife;  in  other  words,  his  property  was 
not  attempted  to  be  disposed  of  by  the  gift  to  C.^ 

303.  Gifts  must  be  by  the  same  instrument. 

The  doctrine  of  election  only  obtains  in  those  cases  in  which 
the  twofold  gift  is  made  by  the  same  instrument.  If,  therefore, 
a  benefit  is  conferred  by  deed  upon  a  person  whose  property 
the  donor  afterwards  affects  to  dispose  of  by  will,  this  is  no  case 
of  election,  because  the  donee  is  not  called  upon  to  attack  and 
defend,  at  one  breath,  the  same  instrument.'' 

Evidence  dehors  the  instrument  is  not  admissible.'' 
It  is  immaterial  whether  the  testator  knew  that  the  property 
was  not  his  own,  or  conceived  it  to  be  his  own.    The  doctrine 
of  election  will  exist  in  either  case.^    Cases  of  no  little  difficulty, 

>  Bristow  V.  Warde,  2  Ves.  Jr.  .336;      309;  Stratton  v.  Best,  1  Ves.  Jr.  285; 

Honyvvood  v.  Forster,  30  Beav.  14; 
City  of  Philadelphia  v.  Davis,  1 
Whart.   490;   Timberlake   v.    Parish, 

5  Dana,  .345;  Miller  v.  Springer,  70 
Pa.  273;  McGinnis  v.  McGinnis,  1 
Kelly,  496.  See,  however,  Long  v. 
Wier,  2  Rich.  Eq.  283. 

5  Whistler  v.  Webster,  2  Ves.  Jr. 
367;  Stephens  v.  Stephens,  1  De  G. 

6  J.62. 


In  re  Fowler's  Tru.st,  27  Beav.  362. 

2  Grissell  v.  Swinhoe,  L.  R.  7  Eq. 
291.  See  Cooper  v.  Cooper,  L.  R.  6 
Ch.  21,  and  Wilkinson  r.  Dent,  Id.  339. 

3  Latrobe  v.  Carter,  83  Md.  279. 
Applied  in  the  case  of  two  instru- 
ments forming  part  of  the  same 
transaction.  Barrier  v.  Kelly,  82 
Miss.  233. 

*  Clementson   v.   Gandy,    1    Keen, 


CH.  IV.]  EQUITABLE    ESTOPPEL;   ELECTION.  459 

however,  sometimes  arise  where  a  testator  assumes  to  deal  with 
property  in  which  he  has  but  a  hmited  interest.  Where  he  has 
any  interest  at  all,  tlie  leaning  of  the  courts  is  towards  a  con- 
struction which  would  make  him  deal  only  with  that  to  which 
he  is  entitled,  and  not  with  that  over  which  he  had  no  disposing 
power,  inasmuch  as  every  testator  must  prima  facie  be  taken 
"to  have  intended  to  dispose  only  of  what  he  had  power  to  dis- 
pose of,  and  in  order  to  raise  a  case  of  election,  it  must  be  clear 
that  there  was  an  intention  on  the  pait  of  the  testator  to  dis- 
pose of  what  he  had  not  the  right  or  power  to  dispose  of."  ^ 
Moreover,  it  may  be  stated  generally  that  the  intention  to  raise 
an  election  nmst  be  a  clear  one;  for  a  paity  will  never  be  put 
to  his  election  upon  a  doubtful  construction. - 

304.     Manner  in  wliich  election  may  be  made. 

As  to  the  manner  in  which  an  election  may  be  made,  it  may 
be  either  by  some  decisive  act  by  which  the  party  may  be  at 
once  estopped  from  afterwards  setting  up  any  title  adverse  to 
the  disposition  to  which  he  had  thus  given  effect,^  or  by  some 
silent  acquiescence  in  the  changed  condition  of  things  upon  the 
faith  of  which  other  parties  have  acted  and  accjuired  rights 
which  it  would  l)e  inecjuitable  afterwai'ds  to  disturb.''  But  a 
bare  acquiescence,  without  a  deliberate  and  intelligent  choice 
made  under  a  full  knowledge  of  all  the  circumstances,  and  of 
the  party's  rights,  will  not  be  an  election.^ 


1  Wintour  v.  Clifton,  S  De  G.,  M.  "  Tibbits  v.  Tibbits,  19  Ves.  956; 
&  C.  G41;  Shuttleworth  (7.  Greaves,  4  Worthington  v.  Wiginton,  2U  Beav. 
My.  &  Cr.  ^5;  Dummer  v.  Pitcher,  2  07.  See  Spread  v.  Morgan,  11  H.  L. 
My.  &  Keene,  2G2.  See  Wilkinson  v.  Cas.  588;  Fulton  v.  Moore,  25  Pa. 
Dent,  L.  R.  6  Ch.  339.  408;  Upshaw  v.  Upshaw,  2  Hen.  <& 

2  Wilson  V.  Amy,  1  Dev.  &  Bat.  Munf.  381;  Gaston  v.  Gaston,  2  Rich. 
Eq.  376;  Hall  v.  Hall,  1  Bland,  1.30;  Eq.  1;  Stark  v.  Hunton,  Saxt.  Gh. 
McElfresh  v.  Schley,  2  Gill,  182;  216,  227;  Glay  v.  Hart,  7  Dana,  1; 
Havens  v.  Sackett,  15  N.  Y.  365;  Drake  v.  Wild,  70  Vt.  52;  Medill  v. 
Stokes's   Estate,    61    Pa.    144.      See,  Snyder,  61  Kan.  15. 

also,  Blackett  v.  Lamb,  14  Beav.  482,  ^  Duncan  v.  Duncan,  2  Yeates,  302; 

where  the  court  refused  to  raise  an  Snelgrove  v.  Snelgrove,  4  Dess.  274; 

election  from  mere  precatory  words  .\nderson's  Appeal,  .36  Pa.  476;  Dick- 

which,  in  that  case,  were  construed  inson  v.  Dickinson,  61  Id.  405;  Gox  v. 

not  to  be  imperative.  Rogers,  77  Id.  167;  I  Lead.  Gas.  Eq. 

3  See  Snell's  Principles  of  Equity,  413  (Am.  note). 
182. 


400 


EQUITABLE    KSTOPPKL!    ELECTION. 


[part  II. 


If  the  fact  of  election  is  doubtful,  it  may  be  sent  to  a  jury  for 
determination.^ 

Parties  competent  to  make  an  election  must  usually  be  sui 
juris,  but  elections  may  sometimes  be  made  by  a  court  of  ecjuity 
on  behalf  of  infants  and  married  women. ^ 

A  party  compelled  to  elect  is  entitled  to  know  the  value  of 
the  properties  previous  to  election ;  ^  and  may  file  a  bill  to  have 
all  necessary  accounts  taken. ^ 

305.  Consequence  of  an  election  is  compensation,  not  for- 
feiture. 

It  was  at  one  time  doubted  whether  the  consequences  of  an 
election,  adverse  to  the  will  of  the  donor,  were  to  be  measured 
by  the  theory  of  forfeiture,  or  by  that  of  compensation;  that 
is  to  say,  whether  the  gift  was  absolutely  forfeited  by  the  re- 
fractory donee  for  the  benefit  of  the  disappointed  beneficiary, 
or  whether  the  donee  was  only  obliged  to  make  good  the  other 
gift  to  the  extent  of  its  value. 

The  law  is  now  settled  in  favor  of  the  doctrine  of  compensa- 
tion.^ 


306.  Application  of  doctrine  of  election  to  cases  of  cred- 
itors. 

It  was  said  by  Sir  Wm.  Grant,  in  Kidney  v.  Coussmaker,^ 
that  the  doctrine  of  election  did  not  apply  in  the  case  of  a  cred- 
itor. This  dictum  is  true  enough  if  confined  only  to  those  cases  in 
which  property  is  charged  by  will  with  debts;  for  in  such  a  case 
the  creditor  may  claim  the  benefit  of  the  charge,  and  still  seek 
satisfaction  of  his  debt  out  of  other  assets.     But  the  rule  is, 


»  Roundel  v.  Currer,  2  Bro.  C.  C.  67; 
1  Swanst.  383,  n. 

2  Davis  V.  Page,  9  Ves.  350;  Barrow 
V.  Barrow,  4  K.  &  J.  409;  Williams  v. 
Knight  [1894],  2  Ch.  421 ;  Willoughby 
V.  Middleton,  2  J.  &  H.  344;  Addison 
V.  Bowie,  2  Bland,  606;  Marx  v. 
Clisby,  130  Ala.  502;  Streatfield  v. 
Streatfield,  Cas.  temp.  Talbot,  176; 
1  Lead.  Cas.  Eq.  333;  Dickson  v. 
New  York  Biscuit  Co.,  211  111. 
468. 

3  Boynton  v.  Boynton,  1  Bro.  C.  C. 
445;  Buttricke  v.  Brodhurst,  3  Bro. 
C.  C.  88;  Kreiser's  Appeal,  69  Pa.  200. 


See,  however,  Douglas  v.  Douglas,  L. 
R.  12  Eq.  637. 

4  Buttricke  v.  Brodhurst,  3  Bro.  C. 
C.  88;  1  Ves.  Jr.  171. 

5  Spread  v.  Morgan,  11  H.  L.  Cas. 
588;  Key  r.  Griffin,  1  Rich.  Eq.  67; 
Stump  V.  Findlay,  2  Rawle,  174;  Van 
Dyke's  Appeal,  60  Pa.  490.  See, 
also,  Sandoe's  Appeal,  65  Id.  314; 
Vance's  Estate,  141  Id.  201;  Brown 
V.  Brown,  42  Minn.  270;  Sarles  v. 
Sarles,  19  Abb.  N.  C.  322,  331,  n.; 
Farmington  Savings  Bank  v.  Curran, 
72  Conn.  342. 

e  12  Ves.  136. 


I 


CH.  IV.]  EQUITABLE   ESTOPPEL;    ELECTION.  461 

nevertheless,  not  of  universal  application;  for  it  has  been  de- 
cided that  where  a  creditor  decisively  acquiesces  in  a  certain 
disposition  of  the  debtor's  property,  he  will  not  be  allowed  to 
enforce  the  collection  of  his  debt  by  proceedings  by  which  that 
disposition  may  be  violated.  Thus,  if  a  creditor  accepts  a  divi- 
dend under  an  assignment  for  the  benefit  of  creditors,  he  will  not 
afterwards  be  allowed  to  avoid  that  assignment  in  order  to  render 
the  assets  covered  thereby  liable  to  execution  for  his  debt.^ 

1  Adlum  V.   Yard,    1    Rawle,    163;      where  it  was  held  that  there  was  no 
Perry  on  Trusts,  §  596.    For  a  case      estoppel,  In  re  Hobson,  81  la.  392. 


462 


CONVERSION    AND   RECONVERSION. 


[part  II. 


CHAPTER  V. 


conversion  and  reconversion. 


310. 


311. 


307.  General  nature  and   extent   of 

equitable  conversion. 

308.  Example:  Fletcher  v.  Ashburner. 

309.  Conversion     may     take     place 

either  under  a  trust  or  under 

a  contract. 
What  language  is  necessary  to 

effect  a  conversion. 
In  what  ways  a  trust  to  convert 

may  be  made  imperative. 

312.  Question   of  conversion   one   of 

intention. 

313.  Contract,  to  work  a  conversion, 

must  be  binding. 

314.  General  results  of  a  conversion; 

qualifications. 

315.  Failure  of  the  purposes  of  a  con- 

version; resulting  trust. 

316.  Ackroyd  v.  Smithson;  Smith  v. 

Claxton. 


317.  Conversion  "out  and  out." 

318.  Doctrine   in  the  United  States 

on  this  subject. 

319.  Conversion    under    instruments 

inter  vivos. 

320.  Time  from  which  a  conversion 

takes  place. 

321.  Conversion  under  optional  con- 

tracts. 

322.  Reconversion  may  be  by  act  of 

party  or  by  act  of  law. 

323.  Election   to   reconvert  may  be 

either  by  express  declaration 
or  by  acts. 

324.  By  whom  such  election  may  be 

made. 

325.  Reconversion   by   operation    of 

law. 


307.  General  nature  and  extent  of  equitable  conversion. 

By  Equitable  Conversion  is  meant  a  change  of  property  from 
real  into  personal,  or  fi'om  personal  into  real,  not  actually  taking 
place,  but  presumed  to  exist  only  by  construction  or  intend- 
ment of  equity.^  "Nothing,"  it  has  been  said,  "is  better  estab- 
lished than  this  principle,  that  money  directed  to  be  employed 
in  the  purchase  of  land,  and  land  directed  to  be  sold  and  turned 
into  money,  are  to  be  considered  as  that  species  of  property 
into  which  they  arc  directed  to  be  converted,  and  this  in  what- 
ever manner  the  direction  is  given,  whether  by  will  or  by  way  of 
contract,  marriage  articles,  settlement,  or  otherwise ;  and  whether 
the  mon(^y  is  actually  deposited,  or  only  covenanted  to  be  paid, 
whether  the  land  is  actually  conveyed  or  only  agreed  to  be  con- 


1  Greenwood 
111.    387,    402, 


V.    Greenwood,     178 
quoting    the    text. 


Duckworth 
520. 


V.   Jordan,    138    N.    C. 


CH.  v.] 


CONVERSION    AND   RECONVERSION. 


463 


veyed,  the  owner  of  the  fund,  or  the  contracting  parties  may 
make  land  money  or  money  land."  '  By  this  and  similar  dec- 
larations the  judges  do  not  mean  to  assert  a  solemn  piece  of  legal 
juggling  without  any  foundation  of  common  sense;  but  simply 
to  lay  down  the  practical  doctrine  that  for  certain  purposes  of 
devolution  and  transfer,  and  in  order  that  the  rights  of  parties 
may  be  enforced  and  preserved,  it  is  sometimes  necessary  to 
regard  property  as  subject  to  the  rules  applicable  to  it  in  its 
changed  and  not  in  its  original  state,  although  the  change  may 
not  have  actually  taken  place." 

308.  Example:  F/efcherv.  AA/iburner. 

The  case  just  cited  ^  is  an  excellent  illustration  of  the  general 
nature  of  this  doctrine.  There  F.  made  his  will,  by  which  he 
devised  real  estate  to  trustees  in  trust  (after  his  widow's  death), 
to  sell  the  same  and  divide  the  proceeds  between  his  son  and 
daughter.  The  son  and  daughter  both  died  in  the  lifetime  of  the 
widow,  who,  as  her  son's  next  of  kin,  became  entitled  to  the 
property,  if  it  were  to  be  considered  as  personalty.  After  her 
death  a  bill  was  filed  by  the  son's  heir-at-law,  claiming  the  prop- 
erty as  real  estate.  It  will  be  observed  that  the  question  then 
fairly  arose  whether  the  devolution  of  the  property,  after  the 
death  of  the  original  testator,  was  to  be  governed  by  the  rules 


»  By  Sir  Thomas  Sewell,  M.  R.,  in 
Fletcher  v.  Ashburoer,  1  Bro.  C.  C. 
497.  This  is  the  leading  authority  on 
this  subject.  See  1  Lead.  Cas.  Eq. 
619.  See,  also,  Craig  v.  Leslie,  3 
Wheat.  563;  Peter  v.  Beverly,  10  Pet. 
532;  Taylor  v.  Benham,  5  How.  23.3; 
Holland  v.  Cruft,  3  Gray,  180;  Loril- 
lard  V.  Coster,  5  Paige  Ch.  172; 
Arnold  v.  Gilbert,  5  Barb.  190;  Kane 
V.  Gott,  24  Wend.  641;  Greenland 
V.  Waddell,  116  N.  Y.  234;  Allison  v. 
Wilson,  13  S.  &  R.  330;  Morrow  /-. 
Brenizer,  2  Rawle,  185;  Burr  v.  Sim, 
1  Whart.  252;  Parkinson's  Appeal,  32 
Pa.  455;  Brolasky  v.  Gally's  Ex'rs,  51 
Id.  509;  McClure's  Appeal,  72  Td.  417; 
Sweeney  v.  Horn,  190  Pa.  241;  Taze- 
well V.  Smith,  1  Rand.  313;  Pratt  v. 
Taliaferro,  3  Leigh,  419;  Smith  v. 
McCrary,  3  Ired.  Eq.  204;  Ex  parte 


McBee,  3  N.  C.  332;  Tayloe  v.  John- 
son, Id.  381;  Scudder  ?).  Vanansdale, 
13  N.  J.  Eq.  109;  Thomas  r.  Wood,  1 
Md.  Ch.  296;  Lynn  v.  Gephart,  27 
Md.  563;  Collins  v.  Champ's  Heirs,  15 
B.  Mon.  118;  Green  v.  Johnson,  4 
Bush,  167;  Haward  v.  Peavey,  128 
111.  430;  Rinehart  v.  Harrison,  Baldw. 
C.C.  177;  Boland  r.  Tiernay,  118  la. 
59;  Stake  v.  Mobley,  102  Md.  408; 
Boyce  v.  Kelso  Home,  107  Md.  190. 
A  direction  in  the  will  postponing 
the  time  of  sale  will  not  prevent  a 
conversion  from  taking  place;.  High 
V.  Worley,  33  Ala.  196;  Hocker  v. 
Gentry,  3  Mete.  (Ky.)  463. 

2  See  the  remarks  in  Foster's  Ap- 
peal, 74  Pa.  397,  and  in  Wentz's 
Appeal,  126  Id.  541. 

3  Fletcher  v.  Ashburner,  supra. 


464  CONVERSION    AND    RECONVERSION.  [PART  II. 

which  were  appHcable  to  it  in  its  existing  condition  as  realty,  or 
by  the  rules  which  would  control  it  in  the  condition  into  which 
it  was  directed  to  be  changed — viz.,  personalty;  in  the  former 
case  it  would  go  to  the  son's  heir;  in  the  latter,  to  the  personal 
representative  of  the  widow.  The  question  was  decided  in  favor 
of  the  personal  representative  of  the  widow,  upon  the  theory 
(already  quoted)  stated  bj'  the  Master  of  the  Rolls. 

309.  Conversion  may  take  place  either  under  a  trust  or 
under  a  contract. 

Conversion  may  arise  not  only  under  a  trust  in  a  will  (of 
which  an  ilhistration  has  just  been  given),  but  also  under  settle- 
ments and  other  instruments  inter  vivos.  Where  (for  example) 
a  binding  contract  is  made  for  the  sale  of  land,  from  that  instant 
a  conversion  takes  place. ^  The  purchaser  is  regarded  for  many 
purposes  as  the  owner  of  the  land,  and  the  rights  of  parties  claim- 
ing under  him  are  determined  by  the  rules  which  govern  the 
devolution  of  realty.  If  the  purchaser  dies  before  conveyance, 
his  heir  will  take  the  land,  and  the  executor  will  be  obliged  to 
pay  the  purchase-money.^  So  where  a  trust  is  created  by  deed 
under  which  it  is  the  duty  of  the  trustee  to  foreclose  mortgages, 
buy  in  the  mortgaged  real  estate,  sell  it  and  distribute  the  pro- 
ceeds, the  interests  of  the  cestuis  que  truslent  after  the  trustee  had 
bought  in  the  land  but  before  he  had  sold  it,  are  to  be  deemed 
personalty  and  not  real  estate.  Qua  the  beneficiaries,  the  real 
estate  vested  in  the  trustees,  is  deemed  in  equity  converted  into 
personal  property.'"^ 

310.  What  language  is  necessary  to  effect  a  conversion. 

Bearing  in  mind  the  two-fold  manner  (by  trust  and  by  con- 
tract) by  which  conversion  may  take  place,  the  next  points  for 
consideration  are,  first,  what  language  is  necessary  to  effect  a 
conversion;  second,  the  general  results  of  the  conversion;  and 
third,  the  time  from  which  the  conversion  takes  place.'* 

As  to  the  first  point,  it  may  be  stated,  in  general  terms,  that 
in  order  to  effect  a  conversion  the  direction  to  convert  in  a  trust 

1  Sug.  V.  &  P.  175.  dor  are  not  affected  by  the  conver- 

2  See  Att.-Gen.  v.  Brunning,  8  H.  sion.    Leipcr's  Ex'rs  r.  Irvine,  26  Id. 
L.  Cas.  243;  Griffith  v.  Beecher,  10  54.    See  Leiper's  Appeal,  35  Id.  420. 
Barb.   432;   Rose  v.  Jessup,    19   Pa.  3  Sweeney  v.  Horn,  190  Pa.  241. 
280;  Naglee  v.  Ingcrsoll,  7  Id.  185.  « See  Snell's  Principles  of  Equity, 
The  rights  of  the  creditors  of  the  veu-  140. 


CH.  v.] 


CONVERSION    AND    RECONVERSION. 


465 


must  be  couched  in  imperative  language,  and  that  in  a  contract 
the  agreement  must  be  binding. 

The  general  rule  that  the  duty  to  convert  must  be  imperative, 
and  not  left  to  the  mere  option  of  the  executors  or  trustees,  was 
established  many  years  ago,  and  has  been  recognized  and  en- 
forced in  many  cases  both  in  England  and  in  this  country. 
One  of  the  earliest  authorities  upon  this  subject  is  Curling  v. 
May.^  There  A.  gave  £500  to  B.,  in  trust  that  B.  should  lay 
out  the  same  in  the  purchase  of  lands  or  put  it  out  in  good  se- 
curities for  the  separate  use  of  his  daughter  H.  (the  plaintiff's 
then  wife),  her  heirs,  executors,  and  administrators.  Subse- 
quently, and  before  the  money  was  invested,  the  daughter  died, 
and  her  husband,  as  administrator,  brought  his  bill  for  the 
money  against  her  heir.  A  decree  was  made  in  favor  of  the 
husband,  cu  the  ground  that,  under  the  alternative  language 
used  by  the  testator,  it  could  not  be  gathered  from  the  will  that 
his  principal  intention  was  that  the  money  should  be  turned 
into  land.  So,  also,  in  an  American  case,  a  conveyance  to  trus- 
tees to  pay  an  annuity  out  of  the  rents  of  certain  real  estate, 
or  to  sell,  was  held  not  to  work  a  conversion,  because  it  was  not 
imp(^rative  on  the  trustees  to  exercise  the  power.-  Many  other 
authorities  to  the  same  effect  are  to  be  found. ^ 

311.  Ill  what  ways  a  trust  to  convert  may  be  made  imper- 
ative. 

This  imperative- character  may  be  impressed  upon  the  trust 
in,  at  least,  three  well-recognized  ways:  either,  first,  by  the  use 
of  direct  words  of  command ;  or,  secondly,  by  a  disposition  of 


1  Cited,  3  Atk.  255. 

2  Bleight  V.  The  Bank,  10  Pa.  KU. 
^  See  Curling  v.  May,  cited,  o  Atk. 

255;  In.  re  Ibbitson,  L.  R.  7  Eq.  226; 
liournc  IK  Bourne,  2  Hare,  35;  De 
Beau  voir  r.  De  Beauvoir,  3  H.  L.  Cas. 
548;  Green  way  v.  Greenway.  2  De  G., 
F.  &  J.  128;  Dominick  v.  Michael,  4 
Sandf.  (S.  Ct.)  374;  Clift  7'.  Moses,  116 
N.  Y.  144;  Pratt  v.  Taliaftirro,  :'. 
Leigh,  41!»;  Montgomery  v.  Milliken, 
1  Sm.  &  M.  Ch.  495;  Cook  v.  Cook,  20 
N.  J.  Eq.  375;  Anevvalt's  App.,  42  Pa. 
414;  Chew  v.  Nicklin,  45  Id.  84;  Miller 
&  Bowman's  App.,  60  Id.  404;  Perot's 

30 


App.,  102  Id.  235;  Becker's  Estate, 
1,50  Id.  524;  Darlington  v.  DarUngton, 
160  Id.  65;  Taylor  v.  Haskell,  178  Id. 
106;  Ness  v.  Davidson,  49  Minn.  469. 
But  the  fact  that  one  of  the  bene- 
ficiaries may  be  given  an  option  lo 
take  the  property  in  its  unconvertdl 
state,  does  not  prevent  a  conversion. 
Perkins  v.  Coughlan,  148  Mass.  30; 
McFadden  v.  Hefley,  28  S.  C.  317. 
See  Laird's  App.,  S5  Pa.  343;  Pyle's 
App.,  102  Id.  317;  Miller  v.  Common- 
wealth, HI  Id.  321,  and  Bennett  v. 
Gallagher,  115Tenn.  568. 


466 


CONVERSION    AND    RECONVERSION. 


[part  II. 


the  property  on  such  Hniitations  as  necessitate  a  change;  or, 
third,  such  a  blending  of  real  and  personal  estate  as  clearly  to 
show  an  intention  to  create  a  fund  out  of  both  kinds  of  estate 
and  to  bequeath  said  fund  as  money. ^ 

If  a  testator  devises  land  to  be  sold,  or  orders  or  directs  that 
the  same  shall  be  sold,  it  is  obvious  that  it  is  the  imperative 
duty  of  the  trustees  to  make  the  sale.  They  have  no  discre- 
tion in  the  matter.  They  are  simply  to  turn  the  real  estate  into 
personalty,  and  to  apply  the  money  thus  realized  to  the  purpose 
designated  in  the  will.    This  is  the  plainest  case  of  conversion. 

Another  case,  almost  as  plain,  is  where  the  testator  has  not 
imperatively  ordered  a  sale,  but  has  given  a  power  to  convert 
coupled  with  such  directions  as  to  the  ulterior  settlement  of  the 
property  in  its  changed  condition  as  to  render  it  impossible  to 
carry  out  the  will  without  making  the  conversion.  Thus,  if  a 
man  were  to  give  a  power  to  trustees  to  invest  money  in  land, 
and  were  to  prescribe  such  subsequent  limitations  as  could  only 
be  carried  out  if  the  subject-matter  were  realty,  a  conversion 
must  necessarily  be  intended,  otherwise  the  limitations  would 
fail.2 

312.  Question  of  conversion  one  of  intention. 

The  doctrine  of  conversion  is  not  confined  to  those  testa- 
mentary dispositions  only  in  which  imperative  words  are  used, 
or  wherein  limitations  which  can  only  be  effectuated  by  a  con- 
version exist.  It  is  to  be  applied  to  all  these  cases  in  which  a 
general  intention  of  the  testator  is  sufficiently  manifested  to  give 
the  property  to  the  donee  in  a  condition  different  from  that  in 
which  it  exists  at  the  time  when  the  will  goes  into  effect.^    A  mere 


1  See  Clift  v.  Moses,  116  N.  Y.  144; 
Hunt's  Appeal,  105  Pa.  141;  Reid 
V.  Clendenning,  19.3  Id.  413;  Cooper's 
Estate,  2()()  Pa.  630;  Becker  i;. 
Chester,  11.')  Wis.  90. 

2  Earlom  v.  Saunders,  Ambler,  241. 
See  .\twell  v.  Atwell,  L.  R.  13  Eq. 
23;  also  the  opinion  of  Lord  Cotten- 
ham,  in  Cookson  v.  Cookson,  12  CI. 
&  Fin.  145.  See  Ford  v.  Ford,  80 
Mich.  42;  Dclafielfl  v.  Barlow,  107 
N.  Y.  535. 


Tazewell  v.  Smith,  1  Rand.  313; 
Stagg  V.  Jackson,  1  Comst.  206; 
Phelps  )•.  Pond,  23  N.  Y.  69;  Salis- 
bury V.  Slade,  160  N.  Y.  278;  Cowley 
V.  Hartstonge,  1  Dow.  361 ;  Cookson 
V.  Reay,  5  Beav.  22;  12  CI.  &  Fin. 
121;  Grieveson  v.  Kirsopp,  2  Keen, 
653;  Cornick  v.  Pearce,  7  Hare,  477; 
Mower  v.  Orr,  Id.  473;  Greenway  v. 
Greenway,  1  Giff.  131;  Roland  v. 
Miller,  100  Pa.  47;  In  re  Albiston's 
Est.,  117  Wis.  272.     It  is  the  diihj  to 


3  See  Snell's  Principles  of  Equity,       convert  which  creates  the  equitable 
142;  Bogert  v.  Hertell,  4  Hill,  492;       change.    Thornton  v.  Hawley,  10  Ves. 


I 


CH.  v.] 


CONVERSION    AND    RECONVERSION. 


407 


testamentary  power  of  sale,  vested  in  executors  to  sell  real  estate, 
will  not  work  a  conversion ;  ^  but  if  to  the  power  there  is  added  a 
direction,  a  conversion  will  be  effected.^  There  must  be  an  intent 
to  convert,  either  express  or  implied.-*  The  question  always  is, 
did  the  testator  intend  to  give  money  or  to  give  land,  and  has 
that  intention  been  sufficiently  expressed?  Once  arrive  at  the 
intention,  by  proper  rvdes  of  interpretation,  and  the  property 
will  then  be  considered  as  impressed  with  that  character  which 
the  testator  designed  it  should  bear  when  it  reached  the  hands 
of  the  beneficiary.''  While  a  discretion  in  the  trustees,  as  to 
whether  a  sale  shall  or  shall  not  take  place,  will  of  course  prevent 
a  conversion,  yet  a  mere  discretion  as  to  the  time  or  manner  of 
sale  will  not  hinder  a  conversion.^ 


313.  Contract,  to  work  a  conversion,  must  be  bindinj^. 

As,  where  a  conversion  arises  under  a  trust,  imperative  words 
(or  equivalent  provisions)  are  required  to  create  it;  so,  also, 
where  the  conversion  is  claimed  to  have  taken  place  by  virtue 
of  a  contract,  it  is  necessary,  as  a  general  rule,  that  the  contract 
be  binding.  The  question  always  is,  whether  the  vendor  or 
purchaser  (as  the  case  might  be)  at  the  time  of  his  death  was 
either  absolutely  or  contingently  *'  under  such  an  agreement  as 
equity  would  enforce  against  him.^  The  rule  is  not  altered  by 
anything  happening  after  the  death  of  the  purchaser  by  which 
the  binding  character  of  the  contract  could  be  affected,*  nor 


129;  Taylor  v.  Taylor,  3  De  G.,  M.  & 
G.  190;  Robinson  v.  The  Governors, 
10  Hare,  19. 

1  Sheridan  v.  Sheridan,  13G  Pa.  22. 

2  Martin's  Appeal,  148  Pa.  394. 

3  Hunt's  Appeal,  105  Pa.  128;  Mills 
?'.  Harris,  104  N.  C.  626. 

*  Morrow  v.  Brenizer,  2  Rawlo,  18.'); 
VVurts  V.  Page,  19  N.  J.  Eq.  365.  But 
see  Girard  Life  Ins.  Co.'s  App.,  75 
Pa.  87;  Fors>i^h  v.  Forsyth,  46  N.  .1. 
Eq.  400. 

5  Stagg  V.  Jackson,  1  Comst.  206; 
Tazewell  v.  Smith,  1  Rand.  313; 
Crane  v.  Bolles,  49  N.  J.  Eq.  37:5; 
Mellon  V.  Reed,  123  Pa.  1.  But  see 
Christler  v.  Meddi.s,  6  B.  Mon.  35. 

6  Williams  V.  Haddock,  145  N.  Y. 
144. 


7  Dart  on  Vendors,  238  (4th  ed.); 
Garnett  v.  Acton,  28  Beav.  333;  In  re 
Thomas,  34  Ch.  D.  166;  Keep  v. 
Miller,  42  N.  J.  Eq.  100;  1  Lead.  Cas. 
Eq.  843;  note  to  Fletcher  v.  Ash- 
burner.  See,  however,  the  case  of 
Frayne  v.  Taylor,  33  L.  J.  Ch.  (n.  s.) 
228,  where  an  heir  of  a  vendor  elected 
to  carry  out  the  parol  contract  of  his 
ancestor,  and  it  was  held  that  a  con- 
version had  taken  place,  and  tlinl  the 
proceeds  should  go  to  the  personal 
estate  of  the  ancestor. 

8  Dart  on  Vendors,  246;  1  L.  Ca. 
Eq.  843;  Hudson  ?'.  Cook,  L.  R.  13 
Eq.  417.  See  Clapp  v.  Tower,  11 
N.  Dak.  556. 


468  CONVERSION    AND    RECONVERSION.  [PART  II. 

I)}'  the  (ircuiiititaiKe  tlial  the  purchase  is  entirely  at  the  option 
of  the  vendee.* 

314.  General  results  of  a  conversion  ;  qualifications. 

The  next  subject  for  consideration  is  the  general  effects  or 
results  of  the  conversion.  Generally  speaking,  the  court  carries 
out  the  principle  of  conversion  in  all  its  consequences.^  Thus, 
money  directed  to  be  turned  into  land  descends  to  the  heir; 
and  land  directed  to  be  converted  into  money  goes  to  personal 
representatives;^  money  belonging  to  a  married  woman  which 
is  directed  to  be  converted  into  land  is  liable  to  the  husband's 
ciutesy;  "*  an  alien,  though  incapable  of  taking  land  for  his  own 
benefit,  can  take  the  proceeds  of  land  directed  to  be  sold ;  ^  and  in 
many  other  cases  the  enjoyment  of  property  will  be  determined 
by  the  rules  applicable  to  it  in  its  changed,  and  not  in  its  original 
state. « 

But  it  must  not  be  supposed  that  foi'  all  purposes  the  property 
is  to  be  treated  as  in  its  converted  state.  The  notional  conver- 
sion is  not  equivalent  to  a  real  conversion.^  Thus  in  Franks  v. 
Bollans  ^  it  was  held  that  where  there  was  a  notional  conversion 
of  realty  into  personalty  the  husband  of  a  woman  beneficially 
entitled  could  not  dispose  of  his  wife's  interest  by  the  same 

iDart   on   Vendors,    230;   Colling-  «  L.  R.  3  Ch.  718.     In  Oldham  v. 

wood  )'.  Row,  o  Jur.  (n.  s.)  7;>5;  Kerr  Hughes,    2    Atk.    45.3,    Lord    Hard- 

V.  Day,  14  Id.  114;  D'Arras  v.  Keyser,  wicke,  in  speaking  of  the  power  of  a 

26  Pa.  249;  Lawes  i'.  Bennet,  1  Cox,  feme  covert  to  bind  money,  articled 

1G7.  to  be  laid  out  in  land,  by  her  consent 

2  2  Spence's  Eq.  264.  in  court,  with  the  same  effect  as  she 

sSnell's  Principles  of  Equity,  148;  could  the  land  itself  by  a  fine  at  law, 

Scudamore  v.  Scudamore,  Prec.  Ch.  remarked    that    "at   law   money   so 

543;  Ashby  v.   Palmer,    1   Mer.  ('h.  articled  to  be  laid  out  in  land  is  con- 

296;  Elliott  r.   Fisher,   12  Sim.  505;  sidered    barely    as    money    until   an 

Wurts   V.    Pago,    19   N.   J.   Eq.   365;  actual  investiture,  and  the  equity  of 

though    see    Girard    Life    Ins.    Co.'s  this  court  alone  views  it  in  the  light 

Appeal,  75  Pa.  87.  of  a  real  estate;  and,  therefore,  this 

■*  Sweetapple   v.    Bindoii,    2   Vern.  court  can  act  upon  its  own  crcii lure, 

536.  and  do  what  a  fine  at  conmion  law 

5  Craig  V.  Leslie,  3  Wheat.  563;  Du  can  upon  land;"  which  shows  that 
Hourmelin  v.  Sheldon,  1  Beav.  79;  4  the  doctrine  of  conversion  in  equity 
My.  &  Cr.  525;  Creonwood  r.  CJreen-  is  purely  notional,  and  that  the  prop- 
wood,  178  111.  387.  crty    is    to    be    treated    as    if    in    its 

6  See  Earlora  v.  Saunders,  Ambl.  changed  condition  only  for  certain 
241.  purposes.      See,    however,    Siter    v. 

7  Wilder  r.   Ranney,  95   N.   Y.    7;  McClanachan,  2  Gratt.  280. 
Crowley  v.  Hicks,  72  Wis.  539. 


CH.  v.]  CONVERSION    AND    RECONVERSION.  469 

means  by  which  he  could  di.sj)ose  of  her  actual  personal  i)ioi)- 
erty;  and  in  Brook  v.  Badley  ^  it  was  held  that  the  interest  of 
a  person  entitled  to  a  portion  of  the  proceeds  of  land  directed  to 
be  sold  was  to  be  considered  as  realty,  so  far  as  his  capacity  to 
make  a  valid  gift  to  a  charity  w^as  concerned.  "The  estate,"  said 
Cairns,  L.  J.,  in  the  case  last  cited,  "is  in  the  hands  of  the  trus- 
tees, not  for  the  benefit  of  those  trustees,  but  for  the  benefit  of 
the  four  persons  between  whom  the  proceeds  of  the  estate  are 
to  be  divided  when  the  sale  takes  place.  It  may  very  well  be 
that  no  one  of  these  four  persons  could  insist  upon  entering  on 
the  land,  or  taking  the  land,  or  enjoying  the  land  qua  land;  and 
it  may  very  well  be  that  the  only  method  for  each  one  of  them 
to  make  his  enjoyment  of  the  land  productive  is  by  coming  to 
the  court  and  applying  to  have  the  sale  carried  into  execution ; 
but,  nevertheless,  the  interest  of  each  one  of  them  is,  in  my 
opinion,  an  interest  in  the  land,  and  it  would  be  right  to  say  in 
equity  that  the  land  does  not  belong  to  the  tmstees,  but  to  the 
four  persons  between  whom  the  proceeds  are  to  be  divided."  ^ 

So,  also,  in  Foster's  Appeal,""*  where  the  question  was  as  to  the 
extent  to  which  partnership  real  estate  had  been  converted,''  it 
was  said:  "Conversion  is  altogether  a  doctrine  of  equity;  in 
law  it  has  no  being;  it  is  admitted  only  for  the  accomplishment 
of  equitable  results.  It  follows,  of  necessity,  that  it  is  limited  to 
its  end." 

316.  Failure  of  the  purposes  of  a  couversion ;  resulting 
trust. 

Another  very  important  qualification  of  the  general  effect  of 
a  conversion  is  that  the  conversion  is  limited  to  the  ])urpose  of 
the  donor;  and  that,  therefore,  in  the  event  of  a  failure  of  the 
purpose,  the  property  will  devolve  according  to  its  original  char- 
acter.-"^ 

When  the  purpose  of  the  conversion  totally  fails,  the  rule  is 
quite  simple.  Where  a  conversion  is  directed  or  contracted, 
whether  by  will  or  by  settlement,  or  other  instrument  intei'  vivos, 

1  L.  R.  3  Ch.  674.     See,  also,  De  *  Post,  §  512. 
LanceyiJ.TheQueen,  L.  R.  7Ex.  140.  5  Painter  v.   Painter,   220  Pa.  82. 

2  Brook  V.  Badley,  L.  R.  3  Ch.  674;  See,  also.  Hill  on  Trustees,  127,  128, 
In  re  Stephens,  43  Ch.  D.  39.  and  notes;  Smith  v.  McC'rary,  3  Ired. 

374  Pa.  397.  See,  also.  Lackey's  Eq.  204;  Commonwealth  v.  Martin,  5 
Appeal,  149  Pa.  7,  and  Reid  v.  Clen-  Munf.  117;  Slocum  v.  Slocum,  4  Edw. 
denning,  193  Id.  413.  Ch.  613;  Rizer  v.  Perry,  58  Md.  112. 


470 


CONVERSION    AND    RECONVERSION. 


[part  II, 


whether  of  money  into  land,  or  of  land  into  money,  if  the  ol)jects 
and  purposes  of  that  conversion  have  totally  failed  before 
the  instrument  directing  the  conversion  comes  into  operation, 
no  conversion  will  take  place;  but  the  property  so  directed,  or 
contracted,  to  be  converted  will  remain  in  its  original  state,  or, 
rather,  will  result  to  the  testator  or  settlor  with  its  original 
form  unchanged.^  Vice-Chancellor  Wood,  in  speaking  of  the 
conveyance  in  Clarke  v.  Franklin, ^  said:  "So  here,  if,  at  the 
moment  when  the  grantor  put  his  hand  to  this  deed,  the  pur- 
pose for  which  conversion  was  directed  had  failed — for  instance, 
if  he  had  given  all  the  proceeds  instead  of  a  part  to  charitable 
purposes,  so  that  the  property  would  have  been  at  home  in  his 
lifetime — the  court  would  have  regarded  it  as  if  no  conversion 
had  been  directed,  and  the  property  would  have  resulted  to  the 
grantor  as  real  estate." 

Turning  now  to  cases  of  a  'partial  failure  of  the  objects  of  the 
conversion,  the  ciuestions  become,  perhaps,  a  little  more  difficult 
and  complicated.  Taking  into  consideration,  in  the  first  place, 
conversion  by  wills,  the  general  rule  as  to  the  case  of  land  con- 
verted into  personalty  would  seem  to  be,  that  where  there  is  a 
partial  failure  the  undisposed  of  surplus  will  result  to  the  heir, 
and,  moreover,  that  where  it  is  necessary  to  sell  the  land  for  the 
purposes  of  the  trust,  the  surplus  belongs  to  the  heir  as  money, 
and  not  as  land,  and  will,  therefore,  go  to  his  personal  repre- 
sentatives, even  though  the  land  may  not  have  been  sold  during 
his  lifetime.^ 


316.  Ackroyd  v.  Smiihson;  Smith  v.  Claxton. 

The  leading  authority  upon  the  general  proposition,  that 
where  there  is  a  partial  failure  there  will  be  a  resulting  trust 
for  the*  heir  and  not  for  the  personal  representatives  of  the  tes- 
tator, is  Ackroyd  v.  Smithson,  well  known  for  the  celebrated 


'  For  a  good  example  of  a  total 
failure  and  consequent  reconversion, 
see  Luffberry's  Appeal,  125  Pa.  513. 
See,  also,  Moore  v.  Robbins,  53  N.  J. 
Eq.  137,  and  Snell's  Principles  of 
Equity,  149. 

2  4  K.  &  J.  257.  See,  also,  Smith  v. 
Jlaxton,  4  Mad.  492.  Evans's  Ap- 
peal, 63  Pa.  183,  seems  to  be  at  vari- 
ance with  this  ruling,  but  it  was  fol- 
lowed in  Davis's  Appeal,  83  Id.  348. 


3  Ackroyd  v.  Smithson,  1  Bro.  C.  C. 
503;  Smith  r.  Claxton,  4  Mad.  492; 
Wright  i'.  Wright,  16  Ves.  188;  Wall 
V.  Colshead,  2  De  G.  &  J.  683;  In  re 
Richerson  [1892],  1  Ch.  379;  Snell's 
Prin.  of  Eq.  153;  Lindsay  v.  Pleas- 
ants, 4  Ired.  Eq.  320;  Wood  v.  Cone, 
7  Paige  Ch.  471;  North  v.  Valk,  Dud- 
ley's Eq.  212;  Wright  v.  Trustees  of 
Meth.  Epis.  Church,  Hoffman,  202. 


I 


CH.  v.] 


CONVERSION    AND    RECONVERSION. 


471 


argument  of  Lord  Eldon,  then  Mi'.  Scott,  who  was  counsel  in 
the  case/  while  the  cliaracier  in  which  the  property  goes  to  the 
heir  is  well  explained  in  Smith  v.  Claxton.^ 

"Where  a  devisor,"  it  was  there  said,  "directs  his  land  to  be 
sold,  and  the  produce  divided  between  A.  and  B.,  the  obvious 
purpose  of  the  testator  is  that  there  shall  be  a  sale  for  the  con- 
venience of  division,  and  A.  and  B.  take  their  several  interests 
as  money  and  not  land.  So  if  A.  dies  in  the  hfetime  of  the  dev- 
isor, and  the  heir  stands  in  his  place,  the  purpose  of  the  devisor 
that  there  shall  be  a  sale  for  the  convenience  of  division  still 
applies,  and  the  heir  will  take  the  share  of  A.,  as  A.  would  have 
taken  it,  as  money  and  not  land.  But  suppose  A.  and  B.  both 
to  die  in  the  lifetime  of  the  devisor,  and  the  whole  interest  in  the 
land  descends  to  the  heir;  the  question  would  then  be  whether 
the  devisor  can  be  considered  as  having  expressed  any  purpose 
of  sale  applicable  to  that  event,  so  as  to  give  the  interest  of  the 
heir  the  quality  of  money.  The  obvious  purpose  of  the  devisor 
being  that  there  should  be  a  sale  for  the  convenience  of  division 
between  his  devisees,  that  purpose  could  have  no  application 
to  a  case  in  which  the  devise  wholly  failed,  and  the  heir  would, 
therefore,  take  the  whole  interest  as  land." 

Passing  now  to  the  case  of  money  directed  to  be  laid  out  in 
land,  the  rule  is  that  (following  Ackroyd  v.  Smithson)  the  surplus 
occasioned  by  a  partial  failure  will  result  to  the  personal  repre- 
sentatives of  the-  testator,-''  but  that  (departing  from  Smith  v. 
('laxton)  the  personal  re])resentatives  will  take  it  in  its  original 
form  of  personalty,  and  not  in  its  converted  form  of  realty."* 


1  1  Bro.  C.  C.  503;  1  Lead.  Cas. 
Eq.  872.  The  rule  in  Ackroyd  v. 
Smithson  would  seem  not  to  be  ap- 
plicable to  cases  in  which  sales  are 
made  by  order  of  court.  In  Steed  v. 
Preece,  L.  R.  18  Eq.  197,  land  had 
been  sold  to  raise  an  infant's  costs  in 
a  suit  for  partition,  and  it  was  held 
that  the  personal  representative  was 
entitled  to  the  surplus  as  against  the 
remainderman.  See  the  remarks  of 
Jessel,  M.  R.,  in  this  case.  But  a 
different  conclusion  was  reached  by 
Lord  Romilly  in  Cooke  v.  Dealey,  22 
Beav.  196;  and  see  the  note  to 
Fletcher  v.  Ashburner,  1  Lead.  Cas. 


Eq.  864  (4th  Eng.  ed.).  The  de- 
cision in  Steed  v.  Preece  would,  how- 
ever, appear  to  be  based  upon  the 
sounder  view.  See  Wallace  v.  Green- 
wood, 16  Ch.  D.  362;  Brett's  Lead. 
Cas.  Eq.  199. 

24  Mad.  492.  See,  also,  Martin's 
Appeal,  148  Pa.  394-399  (where  Ack- 
royd V.  Smithson  is  stated) ;  Newby  v. 
Skinner,  1  Dev.  &  Bat.  Eq.  488;  Bag- 
ster  V.  Fackerell,  26  Beav.  469;  Wall 
V.  Colshead,  2  De  G.  &  J.  683;  Dorsey 
V.  Dodson,  203  111.  32. 

3  Cogan  V.  Stephens,  1  Beav. 
482,  n. 

••  Reynolds  v.  Godlee,  Johns.  536, 


472 


rOXVF.RSTOX    AXI)    UF.rO\VF.T?STON. 


[part  II. 


The  reason  for  applying  the  principle  of  Acki'oyd  r.  Smithsori 
to  the  cases  of  conversion  from  personalty  into  realty  is  obvious; 
by  so  doing  uniformity  in  the  law  is  secured,  and  no  just  ground 
for  making  any  distinction  exists.^  The  reason  for  refusing  to 
apply  the  rule  in  Smith  v.  Claxton  to  the  case  of  a  conversion 
from  personalty  into  realty,  is  simply  because,  as  the  surplus 
goes  to  the  executor,  it  ???w.s/  go  as  personalty;  for  "whatever 
he  gets  in  qua  executor  he  must  hold  as  personalty."  - 

317.  Conversion  "out  and  out." 

In  England  the  tendency  which  exists  to  favor  the  heir  has 
led  the  courts  to  draw  a  distinction  between  those  cases  in  which 
there  has  been  an  intention  to  conveit  "out  and  out"  (as  it  is 
termed),  and  those  in  which  there  is  an  intention  to  convert  only 
for  the  purposes  of  the  will ;  in  the  former  case  the  heir  will  be 
excluded,  in  the  latter  he  will  take.  The  rule  upon  this  subject 
has  been  stated  to  he  "that  unless  the  testator  has  sufficiently 
declared  his  intention,  not  only  that  the  realty  shall  be  converted 
into  personalty  for  the  purposes  of  the  irill,  but  further,  that  the 
produce  of  the  real  estate  shall  be  taken  as  personalty,  whether 
such  purposes  take  effect  oi-  not,  so  much  of  the  real  estate  or 
produce  thereof  as  is  not  effectually  disposed  of  by  the  will  at 
the  time  of  the  testator's  death  (whether  from  the  silence  or  in- 
efficiency of  the  will  itself,  or  from  subsequent  lapse)  will  result 
to  the  heir.  But  every  conversion,  however  absolute  in  its  terms, 
will  be  deemed  a  conversion  for  the  purposes  of  the  will  only, 
unless  the  testator  distinctly  indicates  an  intention  that  it  is,  on 
the  failure  of  those  purposes,  to  prevail  as  between  the  persons 
on  whom  the  law  casts  the  real  and  personal  property  of  an  in- 
testate, namely,  the  heir  and  next  of  kin."  ^  To  such  an  extent 
has  this  doctrine  been  carried  in  England,  that  in  Fitch  v.  Weber 
it  was  held  that  the  right  of  the  heir  was  not  defeated  by  an  ex- 
press declaration  in  the  will  that  the  fund  should  be  considered 


5S3;  Hawley  v.  James,  5  Paige  Ch. 
:J1S. 

'  See  remarks  of  Lord  Cottenham, 
when  Master  of  the  Rolls,  in  Cogan  v. 
Stephens,  1  Beav.  482,  n. 

■  Reynolds  v.  Godlee,  Johns.  536, 
o83,  per  Vice-Chancellor  Wood. 

3  Mr.  Cox's  note  to  Cruse  v.  Barley, 
3  P.  Wms.  22;  1  Jarm.  on  Wills,  530; 


Amphlett  v.  Parke,  2  Russ.  &  My. 
221;  Taylor  v.  Taylor,  3  De  G.,  M.  & 
G.  190;  Robinson  v.  The  Governors, 
10  Hare,  19;  Barrs  v.  Fewkes,  2  Hem. 
&  M.  60;  and  on  rehearing,  11  Jur. 
(N.  s.)  669;  Nagle's  Appeal,  13  Pa. 
260,  264;  Bedford  v.  Bedford,  35 
Beav.  584;  note  to  Ackroyd  v.  Smith- 
son,  1  Lead.  Cas.  Eq..889. 


CH.  v.]  CONVERSION    AND    RECONVERSION.  473 

.'I  personal  fund,  and  should  in  no  case  lapse  or  result  for  his  bene- 

fit.i 

318.  Doctrine  in  the  United  States  on  this  subject. 

In  the  United  States  the  rule  under  consideration  has  not 
leeeived  a  construction  so  favorable  to  the  heir.  In  Craig  v. 
Leslie  it  was  said  to  be  settled,  "  that,  if  the  intent  of  the  testator 
appears  to  have  been  to  stamp  upon  the  proceeds  of  the  land 
described  to  be  sold  the  quality  of  personalty,  not  only  to  sub- 
serve the  particular  purposes  of  the  will,  but  to  all  intents,  the 
claim  of  the  heir-at-law  to  a  resulting  trust  is  defeated,  and  the 
estate  is  considered  to  be  personal."  "  It  was  accordingly  held 
that  the  blending  of  the  proceeds  of  the  realty  with  the  person- 
alty, so  as  to  form  a  common  fund,  for  all  the  purposes  of  the 
will,  though  it  should  happen  that  sonje  of  them  fail,  will  render 
the  conversion  absolute.^ 

319.  Conversion  under  instruments  inter  vivos. 

Having  considered  the  cases  of  the  failure  of  the  purposes  of  a 
conversion  in  uills,  it  will  be  proper  to  say  a  few  words  upon  the 
same  subject  in  cases  under  settlements  oi-  other  instruments 
inter  vivos.  In  such  cases  the  rule  is  the  same  whether  land  is 
to  be  converted  into  money  or  money  into  land ;  ^  the  surplus 
results  always  to  the  settlor  in  its  converted,  not  in  its  original 
form.-'^  The  reason  of  the  distinction,  in  this  respect,  between 
conversions  under  wills  and  those  under  conveyances  inter  vivos, 
is  because  in  the  latter  cases  the  instrument  takes  effect  upon  its 
delivery,  and  therefore  the  deed  operates  simply  as  a  declaration 
on  the  part  of  the  settlor,  "fi-om  the  time  I  put  my  hand  to  this 
deed,  I  hmit  so  much  of  this  property  to  myself  as  personal 
property."  ^ 

320.  Time  from  which  a  conversion  takes  place. 

Having  noticed  tlie  general  effects  and  jjurposes  of  a  conver- 
sion, the  next  subject  for  consideration  is  the  time  as  from  which 
the  conversion  is  supposed  to  take  place. 

'  6  Hare,  145.    See  De  Beauvoir  c.  Whart.  252;  Morrow  v.   Brenizer,  2 

De  Beauvoir,  .3  H.  L.  Cas.  524,  for  Rawle,  185. 

an  illustration  of  the  extent  to  which  •«  Snell's  Principles  of  Equity,  157. 

the  heir  is  favored  in  England.  5  Clarke    v.   Franklin,    4    K.    &  J. 

2  3  Wheat.  56.3.  263. 

3  Id.      Seey.  also,    Burr    ?•.    Sim,    1  « Id. 


474  CONVERSION    AND    RECONVERSION.  [PART  II. 

Tlie  general  rule  is  that  in  the  case  of  a  will  the  conversion 
takes  place  from  the  death  of  the  testator ;  ^  in  the  case  of  a 
deed,  it  takes  place  from  the  date  of  the  delivery  of  the  deed. 

This  rule,  so  far  as  it  concerns  deeds,  is  well  illustrated  by  the 
case  of  Clarke  v.  Franklin.-  There  the  trust  was  (after  the  de- 
termination of  the  life  estate  of  the  settlor)  to  sell  certain  real 
estate,  and  apply  the  proceeds  first  to  making  payments  to  cer- 
tain persons  who  should  then  he  living,  and  the  residue  to  a 
charity.  The  charitable  gift  was  void,  and  the  question  was 
whether  the  residue  resulted  to  the  heir  or  the  next  of  kin  of 
the  settlor;  and  this  depended,  of  course,  upon  the  time  as  from 
which  the  conversion  was  to  be  considered  as  taking  place.  If 
the  conversion  took  place  immediately  upon  the  delivery  of  the 
deed  of  settlement,  then  the  residue  would  result  to  the  settlor 
at  once  as  personalty,  and  would  on  his  death  go  to  his  next  of 
kin ;  but  if,  on  the  other  hand,  the  conversion  did  not  take  place 
until  the  time  when  the  sale  was  (by  the  terms  of  the  trust)  to 
take  place,  viz.,  after  the  settlor's  death,  then  in  the  interim  the 
property  continued  to  be  real  estate,  and  descended  as  such  to 
the  heir  of  the  settlor.  Vice-Chancellor  Wood  decided  in  favor 
of  the  personal  representatives  of  the  settlor ;  or,  in  other  words, 
that  the  conversion  had  taken  place  as  of  the  date  of  the  de- 
livery of  the  deed. 

But  this  rule  does  not  apply  to  the  case  of  a  mortgage  with 
a  power  of  sale;  for  the  intention  of  the  mortgagor  cannot  be 
jjresumed  to  be  to  work  an  immediate  conversion,  but  only  to 
raise  money.  Where,  therefore,  the  mortgaged  estate  was  sold 
after  the  death  of  the  mortgagor,  it  was  held  that  the  surplus, 
after  paying  the  mortgage-debt,  went  to  the  heir  of  the  mort- 
gagor, because  the  equity  of  redemption  had  descended  to  him.^ 

321.  Conversion  under  optional  contracts. 

It  has  been  already  observed  that  a  contract  of  sale  which 
is  binding  on  the  vendor,  will  work  a  conversion,  although  the 
purchase  is  at  the  option  of  the  vendee.^    When  the  option  is 

1  Beauclerk  v.  Mead,  2  Atk.   167.  Hams  v.  Lobban,  206  Mo.  399;  Stake 

Land    directed    to    be    sold    at    the  v.  Mobley,  102  Md.  408. 

widow's  death,  and  the  proceeds  to  2  4  K.  &  J.  257. 

be  divided  among  the  children,  was  3  Wright   v.   Rose,   2    Sim.    «fe  St. 

not  converted  into  personalty  at  the  323. 

time  of  the  testator's  death.     Wil-  *  Ante,  §  313. 


1 


CH.  v.] 


CONVERSION    AND    RECONVERSION. 


475 


exercised  the  conversion  takes  place,  and  it  will  then  relate  back 
to  the  date  of  the  contract,  and  the  property  will  be  considered 
as  converted  from  that  time.^  If  the  option  is  exercised  after  the 
death  of  the  vendor,  and  he  has  made  no  specific  devise  of  the 
pjoperty,  the  purchase-money  will  go  to  his  personal  representa- 
tives generally;  but  if  he  has  specifically,  and  in  express  terms, 
devised  the  land  upon  certain  limitations,  the  purchase-money 
will  go  in  accordance  with  those  limitations.-  If,  however,  a 
testator  makes  a  specific  devise,  and  after  the  execution  of  his 
will  enters  into  a  contract  of  sale  at  the  option  of  the  purchaser, 
the  inference  is  that  the  testator  meant  his  property  to  go  accord- 
ing to  the  state  to  which  it  would  be  reduced  by  the  exercise  of 
that  option,  and  the  specific  devisee  will  not  take.^ 

Until  the  option  to  purchase  is  exercised,  the  intermediate 
rents  will  go  to  the  persons  who  were  entitled  to  the  propeity 
up  to  that  time  as  real  estate.^ 

322.  Reconversion  may  be  by  act  of  party  or  by  act  of  law. 

The  last  topic  which  requires  notice  under  the  head  of  Con- 
version is  that  of  Reconversion,  which  has  been  defined  to  I30 
"that  notional  or  imaginary  process  by  which  a  prior  construc- 
tive conversion  is  annulled  and  taken  away,  and  the  converted 
property  restored  in  contemi)lation  of  equity  to  its  original  ac- 
tual quality."^  In  other  words,  a  reconversion  is  where  the 
(Urection  to  convert  is  countermanded  by  the  parties  entitled  to 
the  property,  or  by  act  of  law. 

And,  first,  the  reconversion  may  take  place  by  act  of  the 
party,  or  by  election,  as  it  is  termed.  The  simplest  case  is  where 
there  is  a  trust  to  sell  and  pay  the  entire  proceeds  of  the  sale  to 
A.  Here  A.  has  a  right  to  say  that  he  prefers  to  take  the  property 
in  its  original  instead  of  its  converted  state;  in  other  words,  he 
I'lects  to  take  the  land.^ 


1  Lawes  v.  Bennet,  1  Cox,  167.  See 
In  re  Isaacs  [1894],  3  Ch.  506,  where 
Lawes  v.  Bennet  was  expressly  ap- 
proved and  followed;  and  also  New- 
port Water  Works  v.  Sisson,  18  R.  I. 
411. 

2  See  Drant  v.  Vause,  1  Y.  &  C.  C. 
C.  580;  Collingwood  v.  Row,  3  Jur. 
(N.  s.)  735;  SneU's  Eq.  146. 


3  Weeding  v.  Weeding,  1  J.  &  H. 
424. 

^Townley  v.  Bedwell,  14  Ves.  591; 
Ex  parte  Hardy,  30  Beav.  206. 

5  Snell's  Principles  of  Equity,  160. 

6  See  Bailey  v.  Allegheny  Nat. 
Bank,  104  Pa.  425-434;  Biedeman 
V.  Sparks,  61  N.  J.  Eq.  226;  Estate  of 
Pforr,  144  Cal.  129. 


47o 


CONVERSION    AND    KECOWERSION'. 


[part  II, 


323.  Election  to  reconvert  may  be  either  by  express  dec- 
laration or  by  acts. 

This  election  may  take  place  either  by  express  declaration, 
or  by  some  act  indicating  a  preference  to  enjoy  the  land  in  ii  ; 
actual  state. ^  The  act,  however,  must  be  clear  and  unequivociJ , 
and  of  such  a  character  as  to  leave  no  reasonable  doubt  of  tlu' 
intent.-  No  inference,  for  example,  can  be  drawn  from  mero 
lapse  of  time.^  Nor  can  a  reconversion  take  place  as  a  general 
rule,  unless  all  the  parties  in  interest  unite  to  elect;  for  where 
several  persons  have  an  interest  in  the  proceeds  of  a  sale,  it  docs 
not  lie  in  the  power  of  any  one  of  them  to  disappoint  the  others 
by  preventing  the  sale  from  taking  place.''  Where,  however, 
there  was  a  direction  to  lay  out  a  certain  sum  of  money  in  land, 
to  be  equally  divided  between  A.,  B.,  and  C,  and  A.  died  leaving 
an  infant  heir,  and  B.  and  C,  together  with  the  infant  heir,  filed 
a  bill  for  the  money,  it  was  held  (although  an  infant  cannot  elect) 
that  B.  and  C.  were  entitled  to  take  their  shares  (two-thirds)  in 
money.^ 

324.  By  whom  such  election  may  be  made. 

A  remainderman  cannot  elect  so  as  to  affect  the  interests  of 
owners  of  prior  estates.^  A  lunatic  cannot  elect  ;^  nor  can  an 
infant  ordinarily,*  but  may  do  so  when  it  is  found  to  be  for  his 
benefit.^ 

Married  women  were  in  England  formerly  only  able  to  effect 
a  reconversion  either  by  means  of  the  pious  fraud  of  a  sham 
purchase  of  real  estate,  and  a  subsequent  levying  of  a  fine,  or 
by  coming  into  court,  and  there  giving  their  consent  to  take 


1  Davies  v.  Ashford,  15  Sim.  42; 
Mutlow  V.  Bigg,  1  Ch.  D.  .393;  Bailey 
V.  Allegheny  Nat.  Bank,  104  Pa.  425; 
Howell  V.  Mellon,  189  Pa.  177. 

2  Beatty  v.  Byers,  18  Pa.  105. 

3  Beatty  v.  Byers,  supra.  The  rule 
is  the  same  when  the  power  to  elect  is 
express.  The  express  power  confers 
only  what  the  law  without  it  would 
impliedly  give.  Jones  v.  Caldwell,  97 
Pa.  442. 

*  Holloway  v.  Radcliffe,  23  Beav. 
163;  Willing  v.  Peters,  7  Pa.  290; 
Beatty  v.  Byers,  18  Id.  105;  Brown 
V.  Miller,  45  W.  Va.  211;    Wayne  v. 


Fonts,  108  Tenn.  145;  Mc Williams 
V.  Gough,  116  Wis.  576;  Pasquay  v. 
Pasquay,  235  111.  48. 

5  Seeley  v.  Jago,  1  P.  Wms.  389. 

6  Spence's  Eq.  271;  Crabtree  v. 
Bramble,  3  Atk.  686;  Cookson  v. 
Cookson,  12  CI.  &  Fin.  146;  Snell's 
Prin.  of  Eq.  162. 

7  Ashby  V.  Palmer,  1  Mer.  Ch.  296. 

8  Seeley  v.  Jago,  1  P.  Wms.  389; 
Robinson  v.  Robinson,  19  Beav.  494. 
Except  by  sanction  and  order  of 
court  after  due  inquiry.  Duckworth 
V.  Jordan,  138  N.  C.  520. 

»  Robinson  v.  Robinson,  tU  aup. 


CH.  v.]  CONVERSION    AND    RECONVERSION.  477 

the  money  as  personal  estate.'  The  ineonvenience  attending 
these  methods  of  effeeting  a  reconversion  finally  led  to  the  pas- 
sage of  a  statute  by  which  a  married  woman  was  permitted, 
by  deed  executed  in  compliance  with  its  provisions,  to  make 
her  election  to  take  or  dispose  of  money  to  be  laid  out  in  land.^ 

325.  Reconversion  by  operation  of  law. 

Reconversion  sometimes  takes  place  by  operation  of  law. 
This  occurs  when  a  fund  directed  or  covenanted  to  be  laid  out 
in  real  estate  comes  into  the  hands  of  the  person  for  whose 
benefit  the  purchase  is  to  be  made,  and  in  whom  the  entire 
right  is  vested,  and  he  dies  without  making  any  declaration  of 
his  intention.  The  fund  is  then  said  to  be  "at  home,"  and 
"  being  in  the  hands  of  one  without  any  other  use,  but  for  him- 
self, it  will  be  money,  and  the  heir  cannot  claim."  ^  Chichester 
V.  Bickerstaff  ^  is  a  case  which  illustrates  the  doctrine  of  recon- 
version by  operation  of  law.  In  that  case  Sir  John  Chichester, 
on  his  marriage  with  the  daughter  of  Sir  Charles  Bickerstaff, 
covenanted  to  advance  £1500  within  three  years  to  be  laid  out 
in  land  of  which  the  ultimate  limitation  was  to  his  right  heirs. 
Within  a  year  after  the  marriage,  the  wife  died  childless,  and 
Sir  John  died  three  days  after  his  wife.  By  his  will  he  made 
Bickerstaff  his  executor,  and  his  sister,  Frances  Chichester,  his 
residuary  legatee.  His  heir-at-law  then  filed  a  bill  against  Bick- 
erstaff, claiming  that  as  the  £1500  was  to  have  been  laid  out 
in  land,  it  ought  to  go  to  him  under  the  limitations  in  the  settle- 
ment. But  Lord  Somers  said  that  the  money,  though  once 
bound  by  the  articles,  when  the  wife  died  without  issue  became 
free  again ;  in  other  words,  that  it  was  then  to  be  considered  as 
at  home  in  Sir  John's  hands.    The  bill  was  therefore  dismissed. 

1  Oldham  v.  Hushes,  2  Atk.  452.  Darhngton,  1  Bro.  Ch.  C.  223;  7  Bro. 

2.3  and  4  Will.    IV.,    c.    74,   §77;  P.  C.  530;  Rich  v.  Whitfield,   L.  R. 

Forbes  v.  Adams,  U  Sim.  4G2;  Hriell's  2  Eq.  5S3;  note  to  Fletcher  v.  Ash- 

Eq.  163,  164.  burner,  1  Lead.  Cas.  Eq.  838. 

3  Per  Lord  Thurlow  in  Pulteney  v.  *  2  Vern.  295. 


478 


ADJUSTMENT. 


[part  II. 


CHAPTER  VI. 


adjustment. 


326. 


327. 

328. 

329. 


330. 
331. 
332. 


334. 
335. 

336. 
337. 


Equities  to  be  considered  under 
Adjustment;  Set-off,  Contri- 
bution, Exoneration,  Subro- 
gation, and  Marshalling. 

Set-off. 

Contribution;  application  most 
frequent  in  case  of  sureties. 

No  contribution  originally  en- 
forceable at  law;  advantages 
of  equitable  proceeding. 

General  rules  as  to  right  of  con- 
tribution. 

Exoneration;  not  originally  en- 
forceable at  law. 

Cases  in  which  these  equities  are 
usually  applied. 

Sales  of  different  parcels  of 
mortgaged  land  to  successive 
purchasers. 

General  average. 

Subrogation;  nature  of  the 
right. 

Judgment  may  bo  kept  alive 
after  it  is  paitl,  in  order  to 
protect  equities. 

Extent  of  the  doctrine  of  sub- 
rogation. 


338.  Qualifications. 

339.  Surety  can  compel  a  creditor  to 

make  a  prompt  use  of  his 
remedies. 

340.  Marshalhng. 

341.  Usually   enforced    through    the 

medium   of   subrogation. 

342.  How  the  equity  of  marshalling 

is  sometimes  qualified. 

343.  Its  application  in  cases  of  bank- 

ruptcy. 

344.  Cases  in   which   this  equity  is 

usually  applied  in  the  United 
States;  doctrine  of  Fosdick  v. 
Schall. 

345.  Marshalling  as  applied  to  estates 

of  decedents. 

346.  Order  in  which  assets  of  a  dece- 

dent are  applied  to  the  pay- 
ment of  his  debts. 

347.  How  the  general  personalty  may 

be  exonerated. 

348.  Exoneration  by  implication. 

349.  When    realty    and     personalty 

contribute  pro  rata. 

350.  Assets  will  not  be  marshalled  in 

favor  of  a  charity. 


326.  Equities  to  be  considered  under  Adjustment ;  Set-off, 
Contribution^  Exoneration,  Subrof?ation,  and  Marshalling. 

The  (Miuities  which  may  be  classed  under  the  general  head  of 
adjustment,  are  those  which  are  applied  mainly  to  the  determi- 
nation of  the  rights  and  liabilities  which  grow  out  of  the  rela- 
tion of  debtor  and  creditor,  although  they  are  also  ajjplicable  to 
those  which  arise  out  of  various  other  relations.  Taking  the 
position  of  debtor  and  creditor  as  a  type,  it  is  plain  that  the 
rights  and  liabilities  arising  therefrom  may  exist  either  between 


I 


CH.  VI.]  ADJUSTMENT.  479 

the  debtor  and  creditor  simply;  or  between  debtors  inter  sese; 
or  between  debtors  of  a  certain  class  on  the  one  hand,  and  their 
co-debtors  and  the  creditors  on  the  other;  or,  finally,  between 
creditors  of  a  certain  class  on  the  one  hand,  and  their  co-creditors 
and  the  debtor,  and  volunteers  claiming  under  them,  on  the 
other;  and  that  these  rights  and  liabilities  may  thus  be  of  a 
greater  or  less  complicated  character,  and  be  affected  by  few  or 
many  considerations. 

From  these  different  positions  which  parties  may  thus  occupy 
towards  each  other,  spring  the  different  equities  of  Set-off,  Con- 
tribution, Exoneration,  Subrogation,  and  Marshalling. 

They  may  all  be  conveniently  classed  under  the  general  head 
of  Adjustment  of  Liabilities;  for  they  all  depend  upon  the  ap- 
plication of  certain  general  maxims  which  tend  to  prevent  cir- 
cuity of  action,  to  throw  burdens  upon  those  who  should  justly 
bear  them,  but  only  in  their  due  proportion  and  in  their  proper 
order,  and  to  secure  benefits  to  those  who  are  of  right  entitled 
thereto,  consistently  with,  and  with  just  regard  to,  the  rights 
of  others.  The  maxims  referred  to  are  such  as  express  the  gen- 
eral principles  of  law  and  equity,  that  he  who  reaps  the  benefit 
should  also  incur  the  burden,  that  equality  is  equity,  and  the 
like;  and  they  all  look  to  the  orderly  and  equitable  enforcement 
of  liabilities  against  the  parties  by  whom,  and  in  favor  of  those 
to  whom,  they  are  justly  due. 

327.  Set-off. 

"The  foundation  of  set-off,"  said  Mr.  Justice  Mitchell,  of  the 
Supreme  Court  of  Pennsylvania,  "is  the  prevention  of  circuity 
of  action.  .  .  .  The  whole  doctrine  is  founded  on  equitable 
principles."  ^  Being  built  on  equitable  principles,  it  will  not  be 
allowed  where  injustice  would  result  to  third  parties  who  have 
acquired  rights  through  the  defendant.^  This  right  (of  set-off), 
although  it  did  not  originally  exist  at  common  law,  was,  never- 
theless, so  effectually  introduced  by  statute,  that  it  now,  perhaps, 
furnishes  no  ground  for  interference  by  a  chancellor  as  an  equi- 
table right. ^    It  is,  indeed,  largely  apphed  in  equity  in  bills  for 

1  Hibert  v.  Lang,  165  Pa.  441;  to  the  same  effect,  Stanley  v.  Buck, 
Leitz  V.  Hohman,  207  Pa.  291.    And       107  Id.  225. 

see  the  language  of  Chief  Justice  (iib-  ■*  For  an  account  of  the  principles 

son  in  Frantz  v.  Brown,  1  P.  &  W.  upon  which  equity  originally  allowed 

257.  the  right  of  set-off,  and  the  manner  in 

2  Gauche  v.  Milbrath,  105  Wis.  355;  which  the  necessity  for  the  exercise  of 


480 


ADJUSTMENT. 


[I'ART  II. 


an  account;  but  that  is,  aw  will  be  seen,  an  equitable  remedy 
which  depends  for  its  existence  and  exercise,  not  upon  the  re- 
fusal of  courts  of  law  to  recognize  a  right,  but  from  their  ina- 
bility, conveniently  and  properly,  to  administer  it.  Some 
claims,  also,  could  be  set  off  in  equity  which  might  not  have 
been  allowed  at  law,  as,  for  example,  a  debt  which  had  been 
assigned,  and  which  (being  a  chose  in  actio?},  and,  therefore,  not 
assignable  at  law)  could  be,  in  equity  alone,  treated  as  belonging 
to  the  assignee,  and,  therefore,  in  equity  alone  could  be  made 
available  as  a  set-off.^  But  it  is  obvious  that  cases  such  as  these 
depend  upon  certain  equitable  titles  or  equitable  rights,  already 
noticed ;  and  that  the  enforcement  of  the  right  of  set-off  in  bills 
for  an  account  is  referable  to  that  equitable  remedy,  under  which 
head  it  will  be  considered.^ 

Nevertheless,  these  remarks  must  be  taken  with  some  quali- 
fication. Cases  do  arise,  even  under  the  modern  common-law 
and  statutory  liberality  as  to  set-off,  in  which  a  set-off  at  law  is 
not  admissible.    Thus,  it  has  been  held  that  where  the  right  of 


its  jurisdiction  came  to  be  superseded 
by  statute,  see  Ex  parte  Stephens,  11 
Ves.  27;  Green  v.  P'armer,  4  Burr. 
2220,  2221;  Freeman  v.  Lomas,  9 
Hare,  116.  See,  also,  Duncan  v. 
Lyon,  3  Johns.  Ch.  358;  Dale  v. 
Cooke,  4  Id.  11;  Simpson  v.  Hart,  1 
Id.  94;  Brown  v.  Hendrickson,  16 
Am.  Law  Reg.  (n.  s.)  619;  Howe  r. 
Sheppard,  2  Sumn.  133;  Greene  v. 
Darling,  5  Mason,  207;  Gordon  v. 
Lewis,  2  Sumn.  628;  Blake  v.  Lang- 
don,  19  Vt.  485;  Matson  r.  Oberne,  25 
111.  App.  213;  Story's  Eq.  §§  1430 
et  seq. 

1  See  Haynes's  Outlines  of  Equity, 
158,  and  notes  to  Rose  v.  Hart,  2 
Sm.  Lead.  Cas.  293. 

Where  there  exists  mutual  sub- 
sisting debts  or  demands  between 
two  several  partnerships,  and  the 
surviving  member  of  one  of  the 
partnerships  brings  a  suit  against 
one  of  the  members  of  the  other 
partnership  individually,  upon  a  debt 
due  the  plaintiff  partnership  and 
this  suit  is  brought  after  the  Statute 


of  Limitations  has  perfected  a  bar 
as  to  the  claim  of  the  partnership  of 
which  the  defendant  is  a  member  as 
to  any  independent  action  on  such 
debt,  the  partnership  of  which  the 
defendant  is  a  member  can  main- 
tain a  bill  in  equity  to  be  allowed  to 
set  off  such  claim  against  the  claim 
of  the  plaintiff.  Fowler  v.  Bellinger, 
140  Ala.  240. 

2  In  general,  in  order  to  support  a 
set-off  there  must  be  cross  demands 
between  the  same  parties  and  in  the 
same  rights,  such  as  would  sustain 
mutual  actions  against  each  other, 
yet  wherever  there  is  the  practica- 
bility of  avoiding  circuity  of  action 
and  needless  costs,  with  safety  and 
convenience  to  all  parties,  or  where 
there  is  a  special  equity  to  be  sub- 
served, and  no  equity  of  third  par- 
ties to  be  injured,  a  set-off  will  be 
allowed  upon  equitable  principles, 
though  the  case  does  not  come 
within  the  language  of  the  statute. 
Craighead  v.  Swartz,  219  Pa.  149. 


CH.  VI.] 


ADJUSTMENT. 


481 


the  defendant  is  simply  to  call  the  plaintiff  to  an  account,  and 
his  demand  is  such  as  must  be  settled  in  account  render  or  by 
bill  in  equity,  a  set-off  in  an  action  at  law  cannot  be  allowed.^ 
In  these  cases,  and  possibly  some  others,  the  remedy,  if  any 
exists,  must  be  by  bill  in  equity ;  ^  and  Courts  of  Chancery  fre- 
quently deviate  from  the  strict  rule  of  mutuality  when  the  jus- 
tice of  the  particular  case  (e.  g.,  insolvency  of  one  of  the  parties) 
requires  it.^  Thus,  in  a  recent  case  in  Wisconsin,  it  was  said 
that  courts  exercising  chancery  jurisdiction  have  fully  recog- 
nized the  doctrine  of  equitable  set-off  and  enforce  it  independ- 
ently of  statute.^ 


328.  Contribution ;  application  most  frequent  in  case  of 
sureties. 

The  equities  to  be  considered  at  present  are  those  of  Contri- 
bution, Exoneration,  Subrogation,  and  Marshalling. 

The  equity  of  Contribution  arises  when  one  of  several  parties 
who  are  liable  to  a  common  debt  or  obligation  discharges  the 
same  for  the  benefit  of  all.  It  is  founded  not  on  contract,  but 
on  the  general  principles  of  justice  stated  above. ^    But  it  can- 


1  Russell  V.  Miller,  54  Pa.  154. 

2  See  further  on  this  subject,  and 
as  examples  of  cases  in  which  a  set-off 
may  be  enforced  in  equity  which 
could  not  be  allowed  at  law,  Gay  v. 
Gay,  10  Paige  Ch.  369;  Ferris  r. 
Burton,  1  Vt.  4.39;  Foot  ?'.  Ketchum, 
15  Id.  258;  Lee  v.  Lee,  31  Ga.  2G; 
Hecht  V.  Furniture  Co.,  114  Ga. 
121;  Lindsay  v.  Jackson,  2  Paige  Ch. 
581;  Ainslie  r.  BojTiton,  2  Barb.  258; 
Jeffries  v.  Evans,  6  B.  Mon.  119; 
Hughitt  V.  Hayes,  136  N.  Y.  163; 
8cott  )'.  Armstrong,  146  U.  S.  499; 
Bibb  L.  L.  Co.  ?'.  Lima  Machine 
Works,  104  Ga.  116;  Markell  v.  Ray, 
75  Minn.  1.38;  Robinson  v.  Kunkle- 
man,  117  Mich.  193. 

3  See  the  language  of  Chief  Justice 
Fuller  in  Scott  v.  Armstrong,  146 
U.  S.  507,  and  the  authorities  cited 
by  him;  also  Armstrong  v.  Warner,  49 
Ohio  St.  376,  and  Richardson  v.  Doty, 
44  Neb.  73.  But  in  St.  Paul,  etc., 
Trust  Co.  V.  Leek,  57  Minn.  87;  Me- 

31 


chanics'  Bank  v.  Stone,  115  Mich. 
648,  and  Northern  Trust  Co.  v. 
Healy,  61  Minn.  2:50  (cases  of  insol- 
vency), the  right  of  set-off  was  de- 
nied. Insolvency  or  non -residence. 
Porter  v.  Roseman,   165  Ind.  260. 

4  Momsen  v.  Noyes,  105  Wis.  565. 

■'  Dering  v.  Earl  of  Winchelsea,  1 
Cox,  318;  1  Lead.  Cas.  Eq.  100, 
Whiting  V.  Burke,  L.  R.  10  Eq.  539; 
6  Ch.  342;  Yonge  v.  Reynell,  9  Hare, 
809;  Stirling  v.  Forrester,  3  Bligh, 
575;  McMahon  v.  Fawcett,  2  Rand. 
514;  Moore  v.  Moore,  4  Hawks,  358, 
360;  Moore  v.  Isley,  2  Dev.  &  Bat.  Eq. 
372;  Allen  v.  Wood,  3  Ired.  Eq.  386; 
Screven  v.  Joyner,  1  Hill  Eq.  252; 
McKenna  v.  George,  2  Rich.  Eq. 
15;  Breckinridge  v.  Taylor,  5  Dana, 
110;  Mills  V.  Hyde,  19  Vt.  59;  Strong 
V.  Mitchell,  Id.  644;  Craig  v.  Ankeney, 
4  Gill,  225;  Campbell  v.  Mesier,  4 
Johns.  Ch.  334;  6  Id.  21;  Van  Winkle 
V.  Johnson,  11  Oreg.  469;  Eads  v. 
Retherford,     114    Ind      273;     Vogle 


482 


ADJUSTMENT. 


[part  II. 


not  be  enforced  on  any  ground  of  fraud ;  that  is  to  say,  when  a 
fraud  is  attempted  to  be  practised  on  several  persons,  and  one, 
alone,  suffers  damage,  the  injiu'ed  party  has  no  right  to  call  upon 
the  others,  against  whom  the  deceit  was  designed  to  be  practised, 
for  contribution.^  The  application  of  this  equity  is  seen  most 
frequently  in  the  case  of  sureties ;  but  it  will,  of  course,  be  borne 
in  mind,  that  the  rules  stated  in  regard  to  this  particular  class 
of  debtors  are,  in  general,  true  as  to  all  parties  who  are  liable  in 
common  to  a  debt  or  charge  of  any  kind.^ 

Where  there  are  two  or  more  sureties,  and  one  pays  the  debt 
for  which  all  are  bound,  the  surety  who  pays  has  the  right  to  re- 
cover from  each  of  his  co-sureties  his  proportionate  share  of  the 
common  burden ;  in  other  words,  he  has  the  right  to  enforce  con- 
tribution. This  right  may  be  asserted  through  the  medium  of  a 
bill  in  equity. 

329.  No  contribution  originally  enforceable  at  law  ;  advan- 
tages of  equitable  proceeding. 

No  contribution  could  have  been  enforced  at  common  law, 
and  the  relief  given  in  equity  was  consequent!}'  based  upon 
the  general  principle  that  no  redress  could  be  had  elsewhere.'' 
Subsequently,  however,  the  common-law  courts  began  to  ad- 
minister relief  by  virtue  of  an  implied  assumpsit,  and  the  remedy 
thus  established  has  been  applied,  especially  in  this  country, 
to  most   cases  of   contribution."*     Nevertheless,  the  remedy  in 


V.  Brow-n,  120  111.  338;  Tomlinson  v. 
Bury,  145  Mass.  346;  Odiorne  v. 
Moulton,  64  N.  H.  211;  Birmingham 
V.  Foisythe,  26  S.  C.  358;  Robinson  r. 
Boyd,  60  Ohio,  57;  Sherling  v.  Long, 
122  Ga.  797;  Sparks  v.  Childers,  2 
Ind.  Tor.  187;  Putnam  v.  Misochi, 
18nMa.ss.  421. 

I  Grubb  V.  Cottrell,  62  Pa.  23.  See, 
also,  Peck  v.  Ellis,  2  Johns.  Ch.  1.36. 

-  As  an  illui^tration  of  the  ca.ses  in 
which  this  equity  arises  and  of  the 
necessity  for  relief  by  bill  in  equity, 
see  Fulton's  Appeal,  95  Pa.  323. 

3  Note  to  Dering  v.  Earl  of  Win- 
chelsra,  1  Lead.  Cas.  Eq.  100;  Harris 
V.  Ferguson,  2  Bailey,  397;  Norton  v. 
Coons,  3  Denio,  1.30. 

*  Johnson    v.    Johnson,    11    Mass. 


359;  Bezzell  v.  White,  13  Ala.  422; 
Fletcher  v.  Grover,  11  N.  H.  368; 
Agnew  V.  Bell,  4  Watts,  31;  Mason  v. 
Lord,  20  Pick.  447;  Norton  r.  Coons, 
3  Denio,  130;  Foster  v.  Johnson,  5 
Vt.  60;  Boyd  v.  McDonough,  39 
How.  Pr.  R.  389.  Payment  of  the 
debt  by  one  of  several  joint  debtors 
will  not  operate  as  an  extinguishment 
or  preclude  a  recovery  for  his  bene- 
fit against  all,  if  the  circumstances 
indicate  that  the  intention  was  to 
purchase  the  demand  and  not  to 
satisfy  it,  and  if  no  duty  is  violated 
by  keeping  it  alive.  See  Mclntyre  i". 
Miller,  13  Mees.  &  Wels.  247;  Taylor 
V.  Van  Deusen,  3  Gray,  498;  note  to 
Dering  v.  Earl  of  Winchelsea,  130 
(4th  Am.  ed.).    The  subject  in  Eng- 


CH.  VI.] 


ADJUSTMENT. 


483 


equity  is,  in  many  respects,  superior.  At  law  separate  actions 
would  have  to  be  brought  against  each  co-surety;  whereas,  in 
equity,  all  of  the  co-sureties  could  be  made  liable  in  the  same 
bill,  and  the  rights  of  sureties  as  against  the  principal  could  be 
adjusted  in  the  same  action.^  Hence,  it  has  been  held  that  the 
complexity  of  an  agreement,  and  the  multiplicity  of  suits  and 
the  successive  sets  of  suits  to  which  it  might  give  rise  at  law, 
are  grounds  upon  which  a  Court  of  Chancery  miglit  properly 
entertain  a  bill  for  the  adjustment  of  the  contributions  called 
for  by  the  agreement  in  one  suit."  At  law  the  co-surety  was 
compellable  only  to  contribute  his  pro  rata  proportion,  having 
regard  to  the  whole  number  of  sureties,  without  reference  to  the 
fact  that  some  one  or  more  of  them  might  be  insolvent ;  ^  whereas, 
in  equity,  the  burden  of  the  debt  is  divided  among  the  solvent 
sureties,  and  the  party  paying,  therefore,  recovers  from  each  of 
the  others  an  amount  dependent  upon  the  number  of  those  who 
are  actually  able  to  pay.^  At  law,  contribution  could  not  have 
been  enforced  against  the  representatives  of  a  deceased  surety; 
but  in  equity  the  rule  is  otherwise.  It  is,  therefore,  well  settled 
that  the  jurisdiction  of  Courts  of  Chancery  still  remains.'^ 


330.  (xeiieral  rules  as  to  right  of  contribution. 

Such  being  the  origin  of  contribution  as  an  equity,  a  few  of 
the  principles  by  which  its  application  is  regulated  may  be 
briefly  stated.    A  surety  is  not  entitled  to  speculate  upon  the 


land  is  now  regulated  by  statute,  19 
and  20  Vict.,  c.  97;  and  see  Batchellor 
V.  Lawrence,  9  C.  B.  (n.  s.)  543,  as 
to  the  right  of  a  co-debtor  paying  a 
judgment  to  compel  the  creditor  to 
assign  it. 

1  See  Craythorne  v.  Swinburne,  14 
Ves.  160.  See,  also,  Black  i\  Shreeve, 
7  N.  J.  Eq.  440. 

2  Black  r.  Shreeve,  7  N.  J.  Eq.  457; 
Dysart  ?-.  Crow,  170  Mo.  275. 

3  Cowell  V.  Edwards,  2  B.  &  P.  268. 
*  Burrows    v.    McWhann,    1    Dess. 

409;  Breckinridge  r.  Taylor,  5  Dana, 
110;  Hitchman  v.  Stewart,  3  Drew. 
271;  Mayor  of  Berwick  /'.  Murray,  7 
De  C,  M.  &  G.  497;  Smith  v.  Mason, 
44  Neb.  610;  Potts  v.  Dulin,  125  N.  C. 
413;  Sloan   i'.  Gibbes,  56  S.  C.  480; 


Boutin  V.  Etsell,  110  Wis.  276;  Mc- 
David  V.  McLean,  202  111.  354.  De- 
parture from  the  state  has  the  same 
effect  upon  the  rights  and  liabilities 
of  the  remaining  sureties  as  insol- 
vency. McKenna  v.  George,  2  Rich. 
Eq.  15;  Faurot  v.  Gates,  86  Wis.  569; 
McAUister  v.  Irwin,  31  Colo.  254. 

5  Wayland  v.  Tucker,  4  Gratt.  267; 
Couch  r.  Terry,  12  Ala.  225;  Chip- 
man  V.  Morrill,  20  Cal.  130;  Wright 
V.  Hunter,  5  Ves.  792.  Equity  has 
jurisdiction  where  the  estate  of  a  de- 
ceased surety  was  settled  before  a 
cause  of  action  on  his  bond  accrued 
to  enforce  contribution  out  of  lands 
held  by  his  heirs.  Hall  v.  Cole,  71 
Ark. 601. 


484  ADJUSTMENT.  [PART  II. 

debt.  If  he  compromises  the  claim,  his  co-sureties  are  entitled 
to  the  benefit  of  the  compromise.  They  are  responsible  only 
for  their  proportion  of  the  amount  actually  paid/  with  interest.^ 

Before  contribution  can  be  enforced,  the  surety  must  actually 
have  paid  the  debt;^  and  the  payment  must  be  compulsory.^ 
This  general  rule,  however,  is  not  without  exceptions;  for  it 
was  held  in  a  case  in  the  English  Chancery  Division  that  a  surety 
against  whom  judgment  has  been  obtained,  although  he  has  paid 
nothing  in  respect  thereof,  may  yet  exact  contribution  from  a 
fellow-surety.^ 

The  surety  must,  moreover,  resort  in  the  first  instance  to  the 
principal.  It  is  only  when  he  fails  to  obtain  reimbursement 
from  the  principal  that  he  is  entitled  to  call  upon  his  co-sureties.^ 
On  the  other  hand,  the  discharge  of  a  surety  from  his  principal 
obligation  without  discharging  his  co-sureties  will  not  relieve 
him  of  his  liability  to  them  for  contribution.''' 

The  circumstance  that  the  sureties  are  bound  by  different 
instruments,  or  at  dilTerent  times,  does  not  affect  the  right  ef 
contribution,  provided  always  that  they  are  bound  for  the  same 
debt,  and  really  occupy  towards  each  other  the  position  of  co- 
sureties.*    But  if  each  suretyship  is  a  distinct  and  separate 

1  Hickman  v.  McCurdj',  7  J.  J.  St.  337.  See,  however,  Bowen  v. 
Marsh.  555.  Nor  has  a  surety  any  Hoskins,  45  Miss.  183.  The  rule  at 
right  to  speculate  upon  his  principal.  law  is  different,  as  the  better  opinion 
Wynn  r.  Brooke,  5  Rawle,  106;  Bon-  seems  to  be  that  in  a  common-law 
ney  v.  Seely,  2  Wend.  481;  Lawrence  action  a  surety  may  recover  from  his 
V.  Blow,  2  Leigh,  30.  co-surety  without  showing  the  insolv- 

2  Swan's  Estate,  4  Ir.  Eq.  209.  ency  of  the  principal.    See  the  reason 

3  Wood  V.  Leland,  1  Met.  387;  explained  in  1  Lead.  Cas.  Eq.  169. 
Glass  V.  Pullen,  6  Bush,  346;  Town-  7  clapp  v.  Rice,  15  Gray,  557.  A 
ship  of  Canosia  v.  Township  of  Grand  surety  is  entitled  to  share  in  any 
Lake,  80  Minn.  357.  But  he  may  indemnity  received  by  his  co-suret}', 
pay  part  of  the  debt  by  a  set-off;  but  such  indemnity  must  have  been 
and  his  right  of  subrogation  will  not  paid  out  of  the  principal's  money, 
be  for  the  balance  only,  but  will  ex-  Hutchinson  r.  Roberts  (Del.  Ch.)  11 
tend   to   the    whole   amount   of   the  Atl.  Rep.  48. 

creditor's  claim.     City  of  Keokuk  v.  »  Bering  v.  The  Earl  of  Winchel- 

Love,  31  la.  119.  sea,  1  Cox,  31S;  Armitage  v.  Pulver, 

*  Ladd   V.  Chamber  of  Commerce,  37  N.  Y.  494;  Breckinridge  v.  Taylor, 

37  0reg.  49.  5  Dana,   110,   112;  Bell  v.  Jasper,  2 

5  Wolmershausen  ?•.  Gullick  [1893],  Ired.  Eq.  597;  Stout  v.  Vance,  1  Rob- 

2  Ch.  514.    See,  also.  Smith  r.  Mason,  inson  (Va.),  169;  Warner  v.  Price,  3 

44  Neb.  610,  and  Fritch  v.  Bank,  191  Wend.  397;  Coope  v.  Twynam,  1  T.  & 

Pa.  288.  R.  426;  Robinson  v.  Boyd,  60  Ohio, 

"See  Camp  v.  Bostwick,  20  Ohio  57. 


II 


(  H.  VI.] 


ADJUSTMENT. 


485 


transaction  (as  for  distinct  and  separate  portions  of  the  same 
debt),  the  right  of  contribution  will  not  exist. ^ 

If  the  sureties  are  not  bound  for  the  same  thing,  or  do  not 
occupy  towards  each  other  the  same  relative  positions,  then  one 
of  three  results  may  follow — either,  first,  the  surety  paying  the 
debt  may  have  no  right  of  contribution ;  or,  second,  a  surety  first 
in  ]:)oint  of  time  may  have  no  remedy  as  against  one  who  is 
subsequent;  or,  third,  a  subsequent  surety  may  have  no  right 
as  against  the  first.^  Of  the  first  of  the  above  results,  the  case  of  a 
substituted  surety  is  an  illustration;  he  has,  of  course,  no  right 
of  contribution  as  against  the  surety  whose  place  he  takes.^  Of 
the  second  class,  an  instance  may  be  found  in  a  case  in  which  a 
note  was  signed  by  A.  as  principal,  and  B.  as  surety,  and  then 
by  C.  as  "surety  for  the  above  names,"  and  C.  was  held  not  liable 
to  contribute  to  B."*  The  third  of  the.  above  class  of  liabilities 
may  be  illustrated  by  the  case  of  a  person  who  becomes  surety  on 
a  bail-bond  or  appeal-bond  in  an  action  against  the  principal 
in  the  original  obligation,  and  is  subsequently  compelled  to  pay 
the  debt.  Such  a  surety,  though  subsequent  in  point  of  date, 
has  no  right  to  call  upon  a  surety  in  the  original  obligation  for 
contribution.^  These  various  liabilities  of  sureties  depend  fre- 
cjuently  upon  the  express  understanding  of  the  parties  to  the 
transaction,  and  oral  testimony  is,  as  a  general  rule,  admissible 
to  show  what  that  understanding  was.* 

As  the  right  of  contribution  is  an  equitable  right,  it  will  not 
be  enforced  as  against  superior  equities  of  a  third  party,''  or  of 
the  co-surety;  nor  will  it  be  enforced  to  the  prejudice  or  injury 
of  the  creditor.* 


1  Moore  v.  Isley,  2  Dev.  &  Bat. 
Eq.  372;  Langford  r.  Perrin,  5  Leigh, 
552;  Johnson  v.  Wild,  44  Ch.  D. 
14G. 

2  See  American  note  to  Bering  v. 
Earl  of  Winchelsea,  1  Lead.  Cas.  Eq. 
157. 

3  Hutchin.s  v.  McCauley,  2  Dev.  & 
Bat.  Eq.  399;  Longley  v.  Griggs,  10 
Pick.  121. 

<  Harris  v.  Warner,  13  Wend.  400; 
Thomp.son  v.  Sanders,  4  Dev.  &  Bat. 
404. 

5  Douglass  V.  Fagg,  8  Leigh,  588; 
Burns  V.  Huntingdon  Bank,   1   Pen. 


&  W^atts,  395;  Schnitzel's  Appeal,  49 
Pa.  23.  See,  however,  Hartwell  v. 
Smith,  15  Ohio  St.  200. 

6  Barry  v.  Ransom,  12  N.  Y.  402; 
Apgar  V.  Hiler,  4  Zab.  808;  Hendrick 
V.  Whittemore,  105  Ma.ss.  23. 

7  Erb's  Appeal,  2  P.  &  W.  296; 
Bank  of  Penn.  v.  Potius,  10  Watts, 
152;  Union  Bank  v.  Edwards,  1  Gill 
&  J.  346. 

8  Hollingsworth  r.  Floyd,  2  Har.  & 
G.  87.  In  Herr  v.  Barber,  2  Mackey 
(D.  C.  Rep.),  545,  it  was  held  that  one 
of  several  defendants  guilty  of  a 
breach  of  trust  who  has  paid  a  decree 


48G 


ADJUSTMENT. 


[part  II. 


331.  Exoneration  ;  not  originally  enforceable  at  law. 

As  the  right  of  contribution  is  one  which  exists  between  those 
who  are  ec|ually  hablc  for  the  same  debt,  so  the  right  of  Exoner- 
ation, as  the  term  impHes,  exists  between  those  who  are  suc- 
cessively Hable.  A  surety  who  discharges  an  obhgation  is  en- 
titled to  look  to  the  principal  for  reimbursement,  and  to  invoke 
the  aid  of  a  court  of  equity  for  this  purpose,^  and  a  subsequent 
surety  who,  by  the  terms  of  the  contract,  is  responsible  only  in 
the  case  of  the  default  of  the  principal  and  a  prior  surety,  may 
claim  exoneration  at  the  hands  of  either.' 

This  right,  like  that  of  contribution,  could  not  originally  have 
been  enforced  at  law ;  but  a  legal  remedy  now  exists  by  virtue  of 
an  implied  promise  to  indenmify.  The  equitable  jurisdiction, 
however,  is  still  maintained,  on  principles  which  have  been  be- 
fore referred  to. 

The  better  opinion  seems  to  be  that  a  surety  is  entitled  to  re- 
cover from  the  principal  not  only  the  amount  of  the  debt  which 
he  has  paid,  but  also  the  costs  incurred.^ 

The  surety  is  entitled  to  file  a  bill  against  the  principal  at  any 
time  after  the  debt  has  fallen  due,  to  compel  payment,  although 
he  may  not  have  been  sued.'' 

It  has  been  observed  by  a  very  learned  judge  and  author  that 
in  equity  a  person  who  is  entitled  to  be  indenmified  against  loss 
is  not  obliged  to  wait  until  he  has  suffered,  and,  perhaps,  been 
ruined,  before  having  recourse  to  judicial  aid.'^  In  the  ordinary 
case  of  principal  and  surety,  as  soon  as  the  creditor  has  accjuired 
the  right  to  immediate  payment  from  the  surety,  the  latter  is 
entitled  to  call  upon  the  principal  debtor  to  pay  the  amount  of 
the  debt  guaranteed,  so  as  to  relieve  the  surety  from  his  obliga- 
tion.^   I'^pon  this  principle  it  has  been  held  that  where  an  agree- 


against  them  all  cannot  enforce 
contribution  in  equity  from  the 
others. 

1  Moore  v.  Young,  1  Dana,  516; 
Baxter  v.  Moore,  5  Leigh,  219;  Bade- 
ley  V.  Consolidated  Bank,  34  Ch.  D. 
536;  Dowse  v.  Gorton  [1891],  A.  C. 
190;  Wesley  Church  v.  Moore,  10 
Pa.  273.  The  doctrine  applies  to  a 
mortgage  by  a  wife  of  her  separate 
property  for  her  husband's  debt. 
Aguilar  v.  Aguilar,  5  Mad.  414; 
Neimcewicz    v.    (Jalui,    3    Paige   Ch. 


614;  11  Wend.  312;  Savage  v.  Win- 
chester, 15  Gray,  453. 

2  See  Harris  v.  Warner,  13  Wend. 
400;  Thompson  v.  Sanders,  4  Dev. 
&  Bat.  404. 

3  Wynn  v.  Brooke,  5  Rawle,  106; 
Hayden  v.  Cabot,  17  Mass.  169. 

*  Beaver  v.  Beaver,  23  Pa.  167; 
Ardesco  Oil  Co.  v.  N.  A.  Mining  Co., 
06  Id.  375. 

s  Lindley  on  Partnership,  Vol.  I., 
p.  *375  (5th  ed.). 

8  Wooldridge  v.  Norris,  L.  R.  6  Eq. 


CH.  VI.] 


ADJUSTMENT. 


487 


ment  was  entered  into  between  two  insurance  companies,  by 
which  one  agreed  to  re-insure  certain  risks  of  the  other,  the 
re-insured  company  could  resort  to  equity  to  compel  perform- 
ance of  the  agreement  without  waiting  to  pay  the  original  in- 
sured ;  '  and  this  decision  seems  entirely  warranted  by  the  au- 
thorities already  referred  to.  vSo,  also,  in  conformity  with  the 
same  principle,  partners  and  directors  who  are  individually 
liable  to  be  sued  on  bonds  and  notes,  which  as  between  them 
and  their  co-partners  are  to  be  regarded  as  the  bonds  and  notes 
of  the  firm  or  company,  are  entitled  to  call  for  contriliution  be- 
fore the  bonds  and  notes  are  actually  paid.^ 

332.  Cases  in  which  these  equities  are  usually  applied. 

The  equity  of  exoneration  is  frequently  applied  in  the  ad- 
ministration of  the  assets  of  decedents.  Thus,  the  personal 
property  is  generally  the  primary  fund  for  the  payment  of  debts ; 
and  hence  it  is  well  settled  that  if  a  person  borrows  money  and 
gives  his  bond  and  moi'tgage  for  the  debt,  the  mortgage  is  merely 
a  collateral  security  for  the  personal  obligation,  and  the  heir  or 
devisee  may  call  upon  the  executor  to  exonerate  the  land  by  an 
application  of  the  personal  assets  to  the  discharge  of  the  mort- 
gage.^   The  subject  will  be  noticed  hereafter."* 

The  equities  of  contribution  and  exoneration  arise  only  when 
the  payment  is  made  in  discharge  of  a  binding  obligation.     If 


410;  Nisbet  v.  Smith,  2  Bro.  Ch.  C. 
582.  See,  also.  Pride  v.  Boyce, 
Rice's  Eq.  276,  287;  Bishop  v.  Day, 
13  Vt.  81,  88;  Hoffman  v.  Johnson, 
1  Bland  Ch.  103,  105;  Stevenson  v. 
Taverness,  9  Gratt.  398;  Rice  v. 
Downing,  12  B.  Mon.  44;  Ellis  v. 
Southwestern  Land  Co.,  108  Wis. 
313;  note  to  Dering  v.  Earl  of  Win- 
chelsea,  1  Lead.  Cas.  Eq.  135  (4th 
Am.  ed.). 

1  Gantt  V.  Amer.  Cent.  Ins.  Co., 
68  Mo.  503  (534);  Fame  Ins.  Co.'s 
Appeal,  83  Pa.  405. 

2  Norwich  Yarn  Co.'s  Case,  22 
Beav.  143.  See,  also,  Hemming  v. 
Maddick,  L.  R.  7  Ch.  395;  Case  of 
Oriental  Commer'l  Bank,  3  Id.  791; 
Cruse  V.  Paine,  L.  R.  6  Eq.  641;  4 
Ch.  441.     A  surety  when  sued  upon 


the  bond  cannot  defend  upon  the 
ground  that  he  was  induced  to  sign 
by  the  fraudulent  misrepresentations 
of  the  principal.  Brornberg  v.  Fi- 
dehty  Co.,  139  Ala.  338. 

3  See  Keyzey's  Case,  9  S.  &  R. 
71;  Cumberland  v.  Codrington,  3 
Johns.  Ch.  229,  257;  Hewes  v.  De- 
hon,  3  Cray,  205;  Goodburn  v.  Ste- 
vens, 1  Md.  Ch.  420;  note  to  Duke  of 
Ancaster  v.  Mayer,  1  Lead.  Cas.  Eq. 
642. 

*  See  post,  §  348.  See  In  re  Gor- 
ton, 40  Ch.  D.  536,  for  an  example  of 
the  doctrine  of  subrogation  as  applied 
to  a  case  where  executors  have  car- 
ried on  a  testator's  business  under 
trusts  in  his  will,  and  the  remarks  of 
Lindley,  L.  J.,  on  p.  541. 


488 


ADJUSTMENT. 


[part  II. 


the  payment  is  voluntary,  it  gives  no  title  to  contribution.  Thus, 
a  co-owner  cannot,  as  a  general  rule,  claim  a  jpro  rata  reimburse- 
ment for  the  amounts  expended  by  him  for  meliorations  and 
repairs  to  the  property.^ 

No  right  of  contribution  exists  where  the  demand  is  ex  delicto} 
In  cases  of  breach  of  trust,  however,  not  involving  actual  fraud, 
contribution  may  be  enforced  by  trustees  as  between  themselves.^ 

333.  Sales  of  different  parcels  of  mortgaged  laud  to  suc- 
cessive purchasers. 

It  has  been  stated,  already,  that  the  case  of  suretyship  was 
only  one  instance  of  the  general  doctrine  of  contribution.  Some 
other  instances  may  be  briefly  noticed.  If  a  mortgaged  estate 
is  sold  to  several  parties,  and  one  of  the  parties  pays  the  mort- 
gage, he  will  be  entitled  to  contribution.''  This  equity  is  not 
binding  on  the  creditor,  but  if  he  renders  its  performance  im- 
possible by  cancelling  the  debt  as  against  one  of  the  lots  when 
he  has  notice  of  the  prior  conveyance,  he  can  only  enforce  pay- 
ment of  a  proportionable  share  as  against  the  others.^  This 
rule  does  not  apply  when  the  purchases  of  the  different  parcels 
take  place  at  different  times.  If  any  parcel  remains  in  the  hands 
of  the  vendor,  that  parcel  will  be  first  liable.  The  purchaser  of 
the  last  lot  wdll  be  liable  to  make  good  the  loss  incurred  by  the 
purchaser  of  a  prior  lot,  and  the  first  purchaser  will  be  the  last 
person  who  can  be  held  responsible  in  respect  of  his  lot.     In 


1  Hardy  v.  Sproule,  31  Me.  71 ; 
Reed  v.  IBachelder,  34  Id.  205;  Tur- 
ner V.  Burrows,  8  Wend.  144;  An- 
derson V.  Greble,  1  Ashm.  136; 
Falcke  v.  Scottish  Co.,  34  Ch.  D.  234; 
Adams's  Doct.  of  Eq.  267. 

2  Peck  V.  Ellis,  2  Johns.  Ch.  131; 
Bartle  v.  Xutt,  4  Pet.  184.  See,  for 
exceptions  to  the  general  rule,  Ache- 
son  V.  Miller,  2  Ohio  St.  203;  Moore 
V.  Appleton,  26  Ala.  633.  This  rule 
applies  only  to  those  cases  in  which 
the  party  seeking  contribution  was 
guilty  of  intentional  wrong.  Ankeny 
V.  Moffett,  37  Minn.  109. 

3  See  Hill  on  Trustees,  814,  notes 
(4th  Am.  ed.). 

<  White    V.    White,    9    Ves.    554; 


Jones  V.  Jones,  5  Hare,  440;  Thomas 
V.  Hearn,  2  Porter,  262;  Chamber- 
layne  v.  Temple,  2  Rand.  384;  Dupuy 
V.  Johnson,  1  Bibb,  562;  Poston  v. 
Eubank,  3  J.  J.  Marsh.  42;  Williams 
V.  Craig,  2  Edw.  Ch.  297;  Aiken  v. 
Gale,  37  N.H.  501. 

5  Stirling  v.  Forrester,  3  Bligh 
(o.  s.),  575,  590;  Stevens  v.  Cooper, 
1  Johns.  Ch.  425;  Cheesebrough  r. 
Millard,  Id.  409;  Guion  v.  Knapp,  G 
Paige  Ch.  35;  Paxton  v.  Harrier,  11 
Pa.  312;  Jones  v.  Myrick,  8  Gratt. 
180;  George  v.  Wood,  9  Allen,  83; 
Stillman  v.  Stillman,  21  N.  J.  Eq. 
126;  Fassett  v.  Traber,  20  Ohio,  540. 
See,  also,  Lloyd  i'.  Galbraith,  32  Pa. 
103;  Lock  v.  Fulford,  52  111.  166. 


CH.  VI.] 


ADJUSTMENT. 


489 


other  words,  the  purchasers  will  be  liable  in  the  inverse  order 
of  their  purchases.^ 

This  rule,  of  course,  only  applies  when  the  sale  of  the  lot  is 
made  free  of  encumbrances.  If  the  purchaser  takes  it  subject 
to  the  mortgage,  the  presumption  is  that  the  amount  has  been 
deducted  from  the  purchase-money,  and  the  burden  of  the  mort- 
gage ought,  therefore,  justly  to  fall  upon  the  vendee;  and  in 
such  a  case,  if  the  vendor  or  those  claiming  under  him  by  sub- 
sequent sales  are  compelled  to  pay  the  mortgage,  they  will  be 
entitled  to  contribution  or  exoneration,  as  the  case  may  be,  at 
the  hands  of  the  first  purchaser.^ 

334.  General  average. 

The  doctrine  of  general  average  is  another  illustration  of  the 
right  of  contribution.  It  is  called  into  play  when  a  loss  arises 
in  consequence  of  extraordinary  sacrifices  made  or  expenses 
incurred  for  the  preservation  of  the  ship  and  cargo,  in  which  case 
the  loss  must  be  borne  proportionately  by  all  who  are  interested. 
Thus,  where  goods  are  thrown  overboard,  or  a  portion  of  the 
ship's  rigging  cut  away,  to  hghten  and  save  the  ship,  or  the  ship 
itself  is  intentionally  stranded  to  save  her  cargo  from  a  tempest 
or  an  enemy,  or  a  part  of  the  cargo  is  delivered  up  by  way  of 


1  Clowes  V.  Dickenson,  5  Johns. 
Ch.  235;  9  Cow.  403;  Cowden's 
Est.,  1  Pa.  267;  Mevey's  Appeal,  4 
Id.  80;  Paxton  v.  Harrier,  11  Id.  312; 
Schrack  v.  Shriner,  100  Id.  451;  Mil- 
ligan's  Appeal,  104  Id.  503;  Holden 
V.  Pike,  24  Me.  427;  Sheperd  v. 
Adams,  32  Id.  63;  Allen  v.  Clark, 
17  Pick.  47  (though  see  Parkman  v. 
Welch,  19  Id.  231);  Pallen  v.  Agri- 
cultural Bank,  1  Freem.  Ch.  419; 
Agricultural  Bank  v.  Pallen,  8  Sm. 
&  M.  357;  Thompson  v.  Murray,  2 
Hill  Ch.  204,  213;  Wright  v.  At- 
kinson, 3  Sneed,  585;  Conrad  v.  Har- 
rison, 3  Leigh,  532;  Blair  v.  Ward, 
10  N.  J.  Eq.  119;  Mount  v.  Potts, 
23  Id.  188;  Commercial  Bank  v. 
Western  Reserve  Bank,  1 1  Ohio,  444 ; 
Prickett  v.  Sibert,  75  Ala.  315;  Ellis 
V.  Fairbanks,  38  Fla.  257;  Bradfield 
V.  Sewall,  58  Neb.  637;  Farmers' 
Savings  Ass'n  v.  Kent,  131  Ala.  246. 


But  in  Kentucky,  in  Dickey  v. 
Thompson,  8  B.  Mon.  312,  the  Court 
of  Appeals  refused  to  follow  the  doc- 
trine in  Clowes  v.  Dickenson,  and  in 
Massachusetts  its  application  would 
seem  to  depend  upon  the  presence  of 
covcnant.s  of  warranty.  Chase  v. 
Woodbury,  6  Cush.  148;  Bradley  v. 
George,  2  Allen,  392;  George  v.  Wood, 
11  Id.  41.  But  elsewhere  the  ques- 
tion is  considered  one  of  contract 
simply,  and  the  existence  of  the  cov- 
enant is  regarded  merely  as  evidence 
by  which  the  intention  of  the  parties 
is  to  be  ascertained.  See  Rawle  on 
Cov.  for  Title,  532,  565  (4th  ed.), 
where  the  authorities  are  examined. 
Am.  note  to  Aldrich  v.  Cooper,  2 
Lead.  Cas.  Eq.  293  (4th  Am.  ed.); 
Vogle  V.  Brown,  120  111.  338,  and 
Merced  Bank  v.  Crocker  Water  Co., 
141  Cal.  11. 
2  See  2  Lead.  Cas.  Eq.  303. 


490  ADJUSTMENT.  [PART  II. 

ransom,  or  is  sold  for  the  necessity  of  the  ship;  in  all  such  cases, 
as  the  impending  danger  is  conmion  to  all,  the  loss  incurred  in 
averting  the  same  should  be  borne  by  all. 

It  was,  at  one  time,  thought  that  the  sole  jurisdiction  to  re- 
cover contribution  in  cases  of  general  average  resided  in  the 
Court  of  Chancery;  l)ut  it  is  now  settled  that  the  jurisdiction  of 
equity  is  only  concurrent,  and  that  the  party  seeking  contribu- 
tion may  enforce  his  right  through  the  medium  of  the  common- 
law  action  of  assumpsit.^ 

The  eciuity  of  contribution  also  arises  when  one  of  several 
tenants  in  conmion  of  land  which  is  subject  to  a  lien,  is  com- 
pelled to  pay  more  than  his  due  proportion  in  discharge  of  the 
same.- 

835.  Subrogation  ;  nature  of  the  right. 

The  equity  of  Subrogation  springs  naturally  out  of  the  two 
equities,  just  considered,  of  contribution  and  exoneration,  and 
is,  in  fact,  one  of  the  means  by  which  those  equities  are  en- 
forced. 

Subrogation,  as  was  stated  in  the  Introduction,^  is  an  equity 
called  into  existence  for  the  purpose  of  enabling  a  party  second- 
arily liable,  but  who  has  paid  the  debt,^  to  reap  the  benefit  of 
any  securities  or  remedies  which  the  creditors  may  hold  as  against 
the  princi[)al  debtor  and  by  the  use  of  which  the  party  paying 
may  thus  l)e  made  whole.-^    This  equity  may  be  used  to  enforce 

1  See  notes  to  Birkley  v.  Presgrave,  company  on  the  part  of  the  injured 

1  Tudor's  Lead.  Cas.  Merc.  Law,  83  person.     But  until  the  surety  actu- 

(112,  1st  Am.  ed.).  ally  pays  the  creditors  he  is  not  en- 

-  Gearhart   r.  Jordan,   11   Pa.  325;  titled     to     subrogation.       Kyner    v. 

Hebb  V.  Moore,  66  Md.  167.  Kyner  and  other  cases  cited  in  the 

'^  Ante,  §  27.  note,  supra:  also  Parrott  v.  Chester- 

*  See  Kyner  v.  Kyner,  6  Watts,  227;  town  Bank,  88  Md.  515.  In  Myers  v. 
Forest  Oil  Co.'s  .\ppeal,  118  Pa.  145;  Miller,  45  W.  Va.  595,  it  was  con- 
Ins.  Co.  of  North  Am.  v.  The  Fidelity  tended  that  one  could  not  be  subro- 
Title  &  Tr.  Co.,  123  Id.  525;  Fidelity  gated  to  the  rights  of  the  state,  but 
Title  &  Tr.  Co.  v.  People's  Nat.  Gas  the  court  decided  against  the  conten- 
Cc,  150  Id.  8;  Musgrave  v.  Dickson,  tion.  See  post,  §  338. 
172  Id.  629;  Lumberman's  Ins.  Co.  v.  5  Forest  Oil  Co.'s  Appeal,  118  Pa. 
Sprague,  59  .Minn.  208;  Insurance  Co.  145;  Schilb  v.  Moon,  50  W.  Va.  47; 
I'.  Railroad  Co.,  132  N.  C.  75.  In  Sands  v.  Durham,  98  Va.  392.  A 
Life  Ins.  Co.  r.  Parker  &  Co.,  96  Tex.  surety  who  has  paid  the  debt  of  his 
287,  subrogation  was  refu.sed  to  an  principal  is  entitled  to  be  subrogated 
accident  insurance  company  in  it-  to  all  the  rights  of  the  creditor 
spect  of  a  claim  against  a   railroad  against  the  principal  and  also  to  the 


CH.  VI.] 


ADJUSTMENT. 


491 


the  equity  of  exoneration  as  against  the  principal  debtor,  or  of 
contribution  as  against  others  who  are  in  the  same  rank.^ 

Suppose,  for  example,  A.  to  be  a  creditor  of  B.,  and  C.  and 
D.  to  be  sureties  for  B.,  and  A.,  moreover,  to  possess  the  addi- 
tional security  of  a  mortgage  on  B.'s  real  estate.  If,  now,  C.  pays 
the  debt,  he  will  be  entitled  to  have  an  assignment  of  the  mort- 
gage, and  to  enforce  it  against  B.'s  real  estate,  in  order  to  assert 
his  right  of  exoneration.^ 

So,  also  if  a  co-surety  has  a  security  from  the  principal,  the 
surety  paying  the  debt  will  be  entitled  to  the  benefit  of  this 
security.^ 

Let  us  take  another  instance:  Suppose  A.,  the  obligor  on  a 
bond  to  B.,  mortgages  his  land  to  B.  to  secure  the  payment  of 
the  bond,  and  that,  afterwards,  A.  incurs  another  debt  upon 
which  judgment  is  obtained  and  the  la,nd  is  sold  at  sheriff's  sale. 
Let  it  further  be  supposed  that  under  the  law  which  prevails  in 


rights  of  the  creditor  against  other  per- 
sons who  were  liable  for  the  debt. 
When  the  principal  is  a  fiduciary  and 
has  been  guilty  of  a  breach  of  trust, 
his  surety  upon  paying  the  debt  is 
subrogated  to  the  remedies  of  the 
cestui  que  trust  against  those  who 
participated  in  the  breach  of  trust. 
American  Bonding  Co.  v.  Mechanics' 
Bank,  97  Md.  598. 

iSee  Hess's  Estate,  69  Pa.  272; 
New  Orleans  v.  Gaines,  138  U.  S.  595; 
note  to  Bering  v.  Earl  of  Winchelsea, 
1  Lead.  Cas.  Eq.  136  (4th  Am.  ed.). 
State  V.  Perkins,  114  La.  302.  An 
insurer  who  pays  a  loss  caused  by 
a  carrier's  negligence  is  subrogated 
to  the  assured 's  rights  against  such 
carrier.  The  carrier's  liability  is  pri- 
mary, that  of  the  insurer  secondary. 
Railway  Co.  v.  Manchester  Mills,  88 
Tenn.  653;  Lumbermen's  Mut.  Ins. 
Co.  V.  Railroad  Co.,  149  Mo.  165; 
Caledonia  Ins.  Co.  v.  Northern  Pa- 
cific Ry.  Co.,  32  Mont.  46.  An  ac- 
cident insurance  company  is  not  en- 
titled to  be  subrogated  to  the  claim 
of  insured  against  a  railway  com- 
pany for  negligence  causing  his  in- 


jury, on  payment  of  the  indemnity 
stipulated  in  the  policy;  nor  can  it 
defend  against  the  claim  of  insured 
because  he  has  settled  with  and  re- 
leased such  railway  company,  ^tna 
Ins   Co.  V.  Parker,  96  Tex.  287. 

2  See  Drew  v.  Lockett,  32  Beav. 
499.  See,  also,  Billings  v.  Sprague, 
49  111.  509;  Kirkman  v.  The  Bank,  2 
Cold.  397;  Dearborn  i-.  Taylor,  18 
N.  H.  153;  Klopp  7\  Lebanon  Bank, 
46  Pa.  88;  McNeills  v.  McNeills,  36 
Ala.  109;  Sears  v.  Laforce,  17  la. 
473;  Lewis  v.  Palmer,  28  N.  Y.  271; 
Davison  v.  Gregory,  132  N.  C.  389; 
Storms  V.  Storms,  3  Bush,  77;  Irick 
V.  Black,  17  N.  J.  Eq.  189;  Rhame  v. 
Lewis,  13  Rich.  Eq.  269. 

aCopis  V.  Middleton,  T.  &  R.  231; 
Parham  v.  Green,  64  N.  C.  436;  Mc- 
Cune  V.  Belt,  45  Mo.  174;  Hinsdill  v. 
Murray,  6  Vt.  136;  .\ldrich  ;■.  Hap- 
good,  39  Id.  617;  Brown  v.  Ray,  18 
N.  H.  102;  Agnew  v.  Bell,  4  Watts, 
31;  Moore  v.  Moore,  4  Hawks,  358; 
note  to  Dering  i;.  Earl  of  Winchel- 
sea, 1  Lead.  Cas.  Eq.  162.  See,  how- 
ever. Hall  V.  Cushman,  16  N.  H. 
462. 


492  ADJUSTMENT.  [PART  II. 

the  jurisdiction  in  which  the  sale  takes  place,  the  title  thus  ac- 
quired by  the  purchaser  (whom  we  will  call  C.)  is  held  by  him  sub- 
ject to  the  mortgage-debt  and  that  for  the  payment  of  this  debt 
the  land  is  primarily  liable.  If,  now,  A.  is  sued  on  his  bond  and 
compelled  to  pay,  he  will  be  subrogated  to  the  rights  of  B.,  and 
will  be  entitled  to  enforce  the  mortgage  against  the  land  in  the 
hands  of  C;  for  C,  by  taking  title  subject  to  the  mortgage,  has 
made  the  land  primarily  liable  and  A.  now  stands  in  the  attitude 
of  surety  only.^ 

The  same  doctrine  is  also  frequently  applied  when  a  junior 
encumbrancer  is  compelled,  for  his  own  protection,  to  pay  off 
a  prior  lien.^ 

A  comprehensive  classification  of  the  cases  in  which  the  doc- 
trine is  applied,  is  difficult;  but  most  instances  would  seem  to 
fall  within  one  or  the  other  of  the  classes  suggested  by  a  Georgia 
decision  in  which  it  was  said  that  a  subrogation  will  arise  only  in 
the  cases  where  the  party  claiming  it  has  advanced  the  money 
to  pay  a  debt,  which  in  the  event  of  default  by  the  debtor  he 
would  be  bound  to  ])ay,  or  where  he  had  some  interest  to  protect, 
or  where  he  advanced  money  under  an  agreement  express  or 
implied  made  either  with  the  debtor  or  creditor  that  he  would  be 
subrogated  to  the  rights  and  remedies  of  the  creditor.^ 

336.  Jud^iiieiit  may  be  kept  alive  after  it  is  paid,  in  order 
to  protect  equities. 

This  equity  of  subrogation  is  one  eminently  calculated  to  do 
exact  justice  between  persons  who  are  bound  for  the  perform- 
ance of  the  same  duty  or  obhgation,  and  is  one,  therefore,  which 
is  much  encouraged  and  protected.  This  may  be  seen  from  the 
rule  which  allows  the  surety  to  keep  alive  a  judgment  for  the  pur- 
pose of  obtaining  satisfaction  out  of  the  principal.  Ordinarily 
the  payment  of  a  debt  operates  as  its  extinguishment,  and  the 
judgment  obtained  for  the  debt  would  necessarily  fall  with  it. 
To  apply  the  rule  to  the  case  of  a  surety  paying  the  debt  would 

1  Steelt'.  Walter,  204  Pa.  257,  and  In  Wilkins  v.  Gibson,  113  Ga.  31, 
cases  cited  on  pp.  267  et  seq.  it  was  held  that  there  may  be  sub- 

2  Silver  Lake  Bank  v.  North,  4  rogation  where  the  junior  encum- 
Johns.  Ch.  370;  Mosier's  .\ppeal,  56  brancer  pays  only  part  of  the  debt, 
Pa.  76.    See,  also,  Wallace's  Appeal,  if  the  whole  debt  be  paid. 

5  Id.  103;  Reyburn  v.  Mitchell,  106  ••»  Wilkins  v.   Gibson,    113  Ga.   31; 

Mo.  365;  Aultman  v.  Bishop,  53  Neb.       McCowan  v.  Brooks,  Id.  532. 
545;  Smith  v.  Stephens,  164  Mo.  415. 
Bemiett  v.  Bank,  128  la.  1. 


CH.  VI.] 


ADJUSTMENT. 


493 


obviously  work  injustice  in  many  instances;  for,  by  coming  in  as 
a  simple  contract  creditor,  the  surety  might  lose  his  chance  of  re- 
imbursement. It  has,  accordingly,  been  held,  and  must  be  con- 
sidered to  be  the  generally  received  doctrine,  that  a  surety,  who 
pays  a  debt  which  has  been  reduced  to  judgment,  is  entitled  to 
nave  the  judgment  kept  alive  for  his  benefit,  and  to  enjoy,  as 
against  the  principal  debtor,  and  also  as  against  a  co-surety, 
exactly  the  same  advantages  which  could  have  been  claimed  by 
the  judgment-creditor.^  In  England,  indeed,  the  law  had  been 
settled  the  other  way  by  Lord  Eldon,-  whose  ruling  was  fol- 
lowed by  Lord  Brougham ;  ^  but  the  hardship  of  his  ruUng  led 
ultimately  to  the  passage  of  a  statute  authorizing  the  judgment 
to  be  kept  alive  for  the  benefit  of  sureties;  '*  and  the  ruling  in 
this  country,  except  in  Alabama,  North  Carolina,  and  Vermont,^ 
has  been  the  other  way,  and  the  doctrine  established  as  above 
stated. "^  Payment  of  the  debt,  in  short,  is  considered  to  oper- 
ate as  an  assignment  of  it ;  and  the  equity  of  subrogation  has 
received  a  more  liberal  construction  in  this  country  than  in 
r^ngland.^ 


1  Bank  v.  Opera  House  Co.,  23 
Mont.  34;  Davis  v.  Vass,  47  W.  Va. 
811.  The  same  doctrine  has  been 
appUed  where  an  intending  purchaser 
of  land  pays  off  Hens.  In  such  a 
case  equity  will  treat  him  as  the  as- 
signee of  such  liens,  although  they 
may  have  been  marked  of  record 
satisfied.  Fowler  v.  Maus,  141  Ind. 
47;  Home  Inv.  Co.  v.  Clarson,  15 
S.  Dak.  513;  Fulkerson  v.  Taylor,  100 
Va.  426. 

2Copis  V.  Middleton,  1  T.  &  R. 
229. 

3  Hodgson  V.  Shaw,  3  My.  &  K.  190. 

*  19  and  20  Vict.,  c.  97. 

5  Houston  u.  Bank  of  Huntsville,  25 
Ala.  250;  Briley  v.  Sugg,  1  Dev.  & 
Bat.  Eq.  366;  Fidelity  Co.  v.  Jordan, 
134  N.  C.  236;  Pierson  v.  Catlin,  18 
Vt.  77. 

»  Lidderdale  v.  Robinson,  2  Brock. 
160;  12  Wheat.  594:  Lathrop  & 
Dale's  Appeal,  1  Pa.  512;  Cottrell's 
Appeal,  23  Id.  294;  Baily  v.  Brown- 
field,  20  Id.  41;  Wright  v.  Grover,  82 


Id.  80;  Fleming  v.  Beaver,  2  Rawle, 
128;  Goodyear  v.  Watson,  14  Barb. 
481;  Marsh  v.  Pike,  10  Paige  Ch.  595; 
Tinsley  v.  Anderson,  3  Call,  285; 
Powell's  Ex'rs  v.  White,  11  Leigh, 
309;  McDougal  v.  Dougherty,  14  Ga. 
674;  Burrows  v.  McWhann,  1  Dess. 
409;  Norwood  v.  Norwood,  2  Har.  & 
J.  238;  Watkins  v.  Worthington,  5 
Bland,  509;  Atwood  v.  Vincent,  17 
Conn.  575;  Norton  v.  Soule,  2  Greenl. 
341;  Neilson  v.  Fry,  16  Ohio  St.  552; 
Allen  V.  Dermott,  80  Mo.  56;  Bushong 
V.  Taylor,  82  Id.  660;  Heisler  v.  Ault- 
man,  56  Minn.  454;  Am.  note  to 
Dcring  r>.  Earl  of  Winchelsea,  1  Lead. 
Cas.  Eq.  137  et  seq.  (4th  Am.  ed.). 
The  surety  must  assert  his  equitable 
right  before  his  legal  remedy  is 
barred.  Junker  v.  Rush,  136  111. 
179;  Pollock  v.  Wright,  15  S.  Dak. 
134. 

7  See  Draper  v.  Ashley,  104  Mich. 
527;  Gore  v.  Brian,  35  Atl.  (N.  J. 
Eq.)  897;  McClure  v.  Johnson,  10 
Okla.  663,  668. 


494 


ADJUSTMENT. 


[part  II. 


337.  Extent  of  the  doctrine  of  subrogation. 

The  creditors  of  a  surety  whose  Hens  upon  the  surety's  real 
estate  are  disturbed  by  its  apphcation  to  pay  the  debt  of  the 
principal  are  entitled  to  the  same  right  of  subrogation  as  the 
surety  himself;  *  and  this  right,  after  it  has  become  fixed,  cannot 
be  defeated  by  the  assignment  or  transfer  of  the  surety,^'  although 
it  may  be  so  defeated,  before  it  becomes  absolute,  by  the  surety's 
transfer. "■*  On  the  other  hand,  the  assignee  of  the  debt,  or  a  sub- 
sequent guarantor  of  the  same,  will  be  entitled  to  be  subrogated 
to  all  the  remedies  against  the  original  surety ."* 

A  mere  volunteer  who  pays  the  debt  cannot  claim  to  be  sub- 
rogated.^ If  such  payment  is  in  fact  a  purchase  of  the  debt, 
and  is  intended  to  operate  as  such,  the  assignee  will  acquire  as 
an  incident  to  his  purchase  the  right  of  subrogation;  and  the 
question  of  subrogation  in  such  a  case  is  one  of  law,  dependent, 
howo\'er,  upon  the  preliminary  question  of  fact  whether  a  pur- 
chase or  extinguishment  of  the  debt  was  intended.^  The  mere 
fact  that,  with  the  proceeds  of  a  later  mortgage,  a  prior  mort- 
gage was  paid  off  for  the  purpose  of  removing  the  lien  thereof, 
affords  no  ground  for  subrogating  the  junior  mortgagee  to  the 
right  of  the  former  mortgagee  upon  its  being  discovered  that  a 
lien  had  ai'isen  intermediate  between  the  two  mortgages.''^ 


1  Neff  V.  Miller,  8  Pa.  348.  In  this 
case  Harrisburg  Bank  r.  German,  3 
Id.  303,  was  overruled.  See  Huston's 
App.,  69  Id.  488.  See,  also,  Gear- 
hart  i\  Jordan,  11  Id.  325,  and  Lloyd 
v.-  Galbraith,  .32  Id.  103. 

2  Huston's  Appeal,  69  Pa.  485. 

3  Cunningham  r.  Macon  and  Bruns- 
wick R.  R.,  156  U.  S.  419. 

*  Hughes  r.  Littlefield,  18  Me.  400; 
Carter  i\  Jones.  5  Ired.  Eq.  196;  Mat- 
thews »'.  .\iken,  1  Comst.  595;  Tal- 
mage  v.  Burlingame,  9  Pa.  21;  Peak 
r.  Dorwin,  25  Vt.  28.  See  Haverford 
L.  &  B.  Ass'n  ?'.  Fire  Ass'n,  180  Pa. 
528. 

5  Webster  &  Goldsmith's  App.,  86 
Pa.  409;  In  re  N.  R.  Constr.  Co.,  38 
N.  J.  Eq.  433;  Wormer  ?•.  Waterloo 
Agr.  Works,  62  la.  699;  Mattcson  v. 
Dent,  112  Id.  551;  Montgomery  v. 
City  Council,  40  C.  C.  A.  108;  Weil  v. 


Ginnery  Co.,  42  La.  Ann.  492;  Wads- 
worth  V.  Blake,  43  Minn.  509;  Desot 
V.  Ross,  95  Mich.  81 ;  Bennett  v. 
Chandler,  199  111.  97;  Roberts  v. 
Best,  172  Mo.  67;  Suddath  v.  Galla- 
gher, 126  Id.  393;  Gunter  v.  Addy,  58 
S.  C.  178;  Watkins  v.  Williams,  63 
Kan.  30.  And  see  Morgan's,  etc., 
Co.  V.  Tex.  Cent.  Ry.  Co.,  137  U.  S. 
198;  Sharp  v.  Bank,  70  Neb.  758. 

8  See  Swan  v.  Patterson,  7  Md.  164; 
Contoocook  Precinct  v.  Hopkinton, 
71  N.  H.  574;  Belshaw  v.  Bush,  11  C. 
B.  191;  Crippen  v.  Chappel,  35  Kan. 
495;  Am.  note  to  Bering  v.  Earl  of 
Winchelsea,  1  Lead.  Cas.  Eq.  155. 

"  Hoagland  r.  Green,  54  Neb.  164. 
Where  one  of  several  tenants  in  com- 
mon pays  off  an  encumbrance  upon 
the  common  estate,  a  court  of  equity 
will  consider  the  encumbrance  as 
still    existing    in    order    to    enforce 


CH.  VI.] 


ADJUSTMENT. 


495 


It  was  held  in  a  case  in  South  Carolina,  decided  in  1893,  that 
where  a  bona  fide  purchaser  at  a  void  judicial  sale,  who  thought 
that  he  was  taking  a  good  title,  has  paid  his  bid  and  the  money 
has  been  applied  to  the  payment  of  a  mortgage-debt,  he  is  en- 
titled to  be  subrogated  to  the  rights  of  the  mortgagee.'  Upon 
the  same  ground  it  was  held,  in  Evertson  v.  The  Central  Bank, 
that  where  money  loaned  on  a  forged  mortgage  was  applied  to 
the  payment  of  a  prior  and  valid  mortgage,  the  mortgagee  un- 
der the  forged  mortgage  could  successfully  claim  to  be  subro- 
gated to  the  rights  of  the  prior  mortgagee.^ 

On  the  other  hand,  in  Campbell  v.  Foster  Home,  decided  by 
the  Supreme  Court  of  Pennsylvania  in  1894,  it  was  held  that  a 
mortgagee  under  a  forged  mortgage,  who,  under  the  impression 
that  he  was  taking  a  good  title  as  mortgagee,  paid  off  a  prior 
and  valid  mortgage,  was  not  entitled  to  be  subrogated  to  the 
rights  of  the  prior  mortgagee,  on  the  ground  {inter  alia)  that  he 
was  a  mere  stranger  who  had  voluntarily  paid  another's  debt.^ 

Under  this  conflict  of  authorities  perhaps  the  doctrine  may  be 
fairly  stated  to  be  that,  as  a  general  rule,  a  supposed  interest  is 


contribution  from  the  co-tenants,  or 
as  extinguished,  according  to  the 
justice  of  the  case  and  the  actual  in- 
tention of  the  party  making  the  pay- 
ment. Kinkead  v.  Ryan,  65  N.  J. 
Eq.  726. 

1  Bailey  v.  Bailey,  41  S.  C.  337. 
To  the  same  effect  is  Dutcher  v. 
Hobby,  86  Ga.  198.  See,  also,  Hun- 
ter V.  Hunter,  58  S.  C.  382,  for  an 
analogous  case.  Where  one  loans 
money  which  is  actually  used  in  pay- 
ing off  a  valid  encumbrance  on  prop- 
erty with  an  agreement  with  the 
borrower  that  he  shall  have  a  valid 
mortgage  on  such  property  and  a 
mortgage  is  given  which  afterward 
proves  to  be  void  because  of  defec- 
tive execution,  such  mortgagee  is  en- 
titled to  be  subrogated  to  the  right 
of  the  mortgagee  whose  mortgage  he 
paid  to  the  amount  paid  by  him  for 
the  release.  Warne  v.  Morgan,  68 
Kan.  450. 

2  Evertson  v.  The  Central  Bank,  33 
Kan.   352;    Webber   v.    Hausler,    77 


Minn.  48.  In  Kimble  v.  Wotring,  48 
W.  Va.  412,  it  was  held  that  the 
fraudulent  grantee  of  land  who  dis- 
charges a  lien  upon  the  property,  is 
entitled  to  subrogation  in  case  the 
conveyance  be,  at  the  instance  of 
creditors,  set  aside  as  in  fraud  of  their 
rights.  See,  also,  Zinkeison  v.  Lewis, 
63  Kan.  590,  and  Markillie  v.  Allen, 
120  Mich.  360;  Sproal  v.  Larsen,  138 
Mich.  142;  Helm  r.  Trust  Co.,  106 
Va.  603;  Hughes  v.  Thomas,  131 
Wis.  315;  Davies  v.  Pugh,  81  Ark. 
253. 

3  Campbell  v.  Foster  Home,  163 
Pa.  609,  also  Gray  v.  Zellmer,  66 
Kan.  514,  and  Pollock  v.  Wright,  15 
S.  Dak.  134.  See,  upon  this  subject, 
Cockrum  v.  West,  122  Ind.  372;  Ger- 
dine  v.  Menage,  41  Minn.  417;  Oury 
V.  Saunders,  77  Tex.  278;  Gerber 
V.  Upton,  123  Mich.  605;  Millbourne 
7'.  Phillips,  143  Ind.  93;  Capen  v. 
Garrison,  193  Mo.  335;  Meeker  ?n  Lar- 
sen, 65  Neb.  158;  Henry  v.  Henry, 
73  Neb.  746. 


496 


ADJUSTMENT. 


[part  II. 


not  sufficient  to  support  a  claim  to  subrogation,^  but  that  ex- 
ceptions may  exist  where  other  equities  intervene. 

]iut  another  question  remains,  namely,  who  is  to  be  deemed 
a  vohmteer? 

It  is  plain  that  a  mere  intermeddler  should  be  so  regarded; 
and  if,  therefore,  a  bail  for  stay  of  execution  (for  example)  goes 
beyond  the  tenor  of  his  bond  and  pays  the  judgment,  he  cannot 
be  substituted  for  the  plaintiff  therein ;  ^  or  if  a  tax  collector 
ol)ligingly  pays  taxes,  he  cannot  be  subrogated  to  the  benefit  of 
their  lien  upon  the  land  of  the  owner.^ 

But  where  a  debtor  borrows  money  for  the  purpose  of  dis- 
charging a  lien,  the  person  advancing  the  money  may  be  sub- 
rogated by  the  debtor  to  the  creditor's  rights,  and  is  not  to  be 
deemed  a  volunteer.  And  this  result  may  follow  in  certain  cases 
even  where  no  such  express  agreement  for  subrogation  exists.'* 
No  general  rule,  in  short,  can  be  laid  down.  Each  case  must  be 
decided  on  its  own  merits.^ 

If  the  owner  of  a  debt  assigns  it  with  a  guaranty,  and  is  sub- 
sequently obliged  to  make  his  guaranty  good  and  pay  the  debt, 
he  \\ill  be  subrogated  to  the  rights  of  the  assignee  as  against 
the  principal  and  sureties  in  the  original  debt. 


1  Koehler  v.  Hughes,  148  X.  Y.  507. 
A  party  to  a  void  marriage  who, 
honestly  believing  that  he  is  the 
husband  of  the  other  party  thereto, 
on  her  verbal  promise  to  convey  him 
a  half  interest  in  the  property,  sat- 
isfies a  mortgage  on  her  land,  is  a 
mere  volunteer  and  not  entitled  to 
be  subrogated  to  the  rights  of  the 
mortgagee.  Brown  v.  Brown,  90 
Miss.  410. 

2  See  the  langiiage  of  Marshall,  C. 
J.,  in  Bank  of  the  United  States  v. 
Winston's  Ex'rs,  2  Brock.  254. 

3  Russell's  Appeal,  59  Pa.  401; 
Repass  v.  Moore,  9S  Va.  .377;  Simp- 
son r.  Ennis,  114  (ki.  202;  Sackett  v. 
Stone,  115  Id.  466,  and  Bigelow  v. 
Scott,  135  Ala.  236.  See,  however, 
Fischer  v.  Woodruff,  25  Wash.  67. 

*  Haverford  L.  &  B.  Ass'n  v.  Fire 
Ass'n,  180  Pa.  522  (an  interesting 
illustration  of  the  right  to  subroga- 


tion on  the  part  of  one  who  makes 
an  advance  for  the  purpose  of  dis- 
charging a  mortgage);  Hoagland  v. 
Green,  54  Neb.  164;  Baker  v.  Ed- 
wards, 156  Ind.  53;  Nat.  Life  Ins. 
Co.  V.  Ayres,  111  la.  200;  Scott  v. 
Land  Mtg.,  etc.,  Co.,  127  Ala.  161; 
Warford  r.  Hankins,  150  Ind.  489; 
Albion  State  Bank  v.  Knickerbocker, 
125  Mich.  311;  Wilder  v.  Wilder,  75 
Vt.  178. 

5  See  the  language  of  the  court  in 
Arlington  State  Bank  v.  Paulsen,  57 
Neb.  717.  Also,  Nalle  v.  Farish,  98 
Va.  130;  Faulk  v.  Calloway,  123  Ala. 
-325;  Baer  v.  Ballingall,  37  Oreg.  416; 
Southern  B.  &  L.  Ass'n  v.  Page,  46 
W.  Va.  302;  Benn  v.  Pritchett,  163 
Mo.  560;  Bank  of  Ipswich  r.  Brock,  13 
S.  D.  409;  Miller  r.  Stark,  61  Ohio, 
413;  First  Nat.  Bank  of  Freehold  v. 
Thompson,  61  N.  J.  Eq.  188. 


CH.  VI.]  ADJUSTMENT.  497 

If  one  surety  takes  a  security  from  the  principal  for  his  own 
indemnity,  it  will  inure  to  the  benefit  of  all  the  sureties.^ 

It  has  been  held  in  several  cases  that  the  principal  creditor  is 
entitled  to  the  benefit  of  any  security  given  to  a  surety  by  way 
of  indemnity.^  But,  in  England,  the  Court  of  Appeal  has  re- 
cently decided  that  this  proposition  is  based  upon  an  incorrect 
view  of  the  authority  ^  usually  cited  in  its  support,  and  that  no 
such  rule,  in  fact,  exists.'' 

The  above  cases  are  merely  instances  of  the  right  of  subroga- 
tion, and  are  not  by  any  means  intended  as  defining  narrowly 
the  limits  of  the  doctrine.  The  principle  is  a  general  one,  and 
will  apply  in  every  instance  (except  in  the  case  of  a  mere  stranger) 
where  one  man  has  paid  a  debt  for  which  another  is  primarily 
liable.^ 

It  has  been  said  that  the  right  of  subrogation  will  not  exist, 
between  parties  who  are  equally  bound — as,  for  example,  co- 
partners, co-obligors  and  co-contractors;  ^  but  this  nmst  be  taken 
with  a  qualification.  It  was  well  said,  in  a  Virginia  case,  that 
where  one  of  such  parties  pays  the  share  of  the  other,  all  the 
conditions  essential  to  the  application  of  the  doctrine  arise.' 
Of  course  a  special  contract  may  exist,  for  example,  where  an 
outgoing  partner  takes  a  covenant  from  the  remaining  members 
of  the  firm  to  pay  the  partnership  debts,  and  save  him  harmless. 
He  stands,  under  these  circumstances,  in  the  position  of  a  surety, 


1  West  V.  Belches,  5  Munf.  187 
McMahon  v.  Fawcett,  2  Rand.  514 
Gregory  v.  Murrell,  2  Ired.  Eq.  233 


Oak  Creek  Valley  Bank  v.  Helmer,  59 
Neb.  176;  Harlan  County  v.  Whitney, 
65  Neb.  105;  Lindsay  v.  Morse,  129 


Hinsdill  v.  Murray,  6  Vt.  136;  Elwood  Mich.  350. 

V.  Deifendorf,  5  Barb.  398;  Rice  v.  3  Maure  v.  Harrison,  1  Eq.  Cas.  Ab. 

Morton,     19    Miss.    253;    Silvey    v.  93  C.  5. 

Dowell,  53  111.  260;  McCune  v.  Belt,  *  In  re  Walker  [1892],  1  Ch.  621. 

45  Mo.  174.  5  1  Lead.  Cas.  Eq.  154  (Am.  note); 

2  See  Keller  v.  Ashford,  133  U.  S.  Blake   v.   Traders'    Nat.    Bank,    145 

622;   Wallace's  Appeal,   5   Pa.    103;  Mass.  13;  Morton  r.  Lumber  Co.,  144 

Mosier's  Appeal,  56  Id.  76;  Rice's  Ap-  N.   C.   31;   Miller's  Appeal,    119   Pa. 

peal,  79  Id.  168;  Rardin  v.  Walpole,  631;  Sands  v.  Durham,  98  Va.  392; 

38  Ind.  146;  Burwell  v.  Fauber,  21  Suydam  v.  Voorhees,   58  N.  J.  Eq. 

Gr.  446;  Osborn  v.  Noble,  46  Miss.  157. 

449;  Moses  v.  Murgatroyd,  1  Johns.  "  Baily  v.   Brownfield,   20  Pa.  41; 

Ch.  129;  Phillips  v.  Thompson,  2  Id.  Oakley  v.  Pasheller,  10  Bligh  (n.  s.), 

421;  Wager  v.  Link,  150  N.  Y.  549;  548;  Fessler  v.  Hickernell,  82  Pa.  150. 
Maure  v.  Harrison,   1   Eq.  Cas.   Ab.  ^  Sands   v.    Durham,    98   Va.    392; 

93  C.  5;  Holt  v.  Sav.  Bank,  62  N.  H.  99   Id.   271.     See,   also,   Ackerman's 

551;  Bank  v.  Hunton,  70  N.  H.  224;  Appeal,  106  Pa.  1. 

32 


498 


ADJUSTMENT. 


[part  II. 


and  may  be  subrogated  to  the  remedies  of  the  creditors  if  the 
covenant  be  not  fulfilled.^ 

But  it  must  not  be  forgotten  that  between  parties  equally 
bound  the  right  of  contribution  exists,  and  that  as  a  consequence 
a  qualified  right  of  subrogation  may  follow. ^  Thus,  in  an  Iowa 
rase  it  was  held  that  while  one  co-tenant  who,  at  the  request  of 
the  other  and  to  prevent  foreclosure,  pays  the  mortgage-debt, 
is  not  entitled  to  subrogation  and  foreclosure  of  the  mortgage, 
he  is  nevertheless  entitled  to  contribution  and  to  a  lien  on  the 
other's  interest  in  the  land  for  his  share  of  the  mortgage  so  paid.^ 

338.  Qualifications. 

The  right  of  subrogation,  like  that  of  contribution,  rests  not 
on  contract,  but  on  general  principles  of  equity.''  "  It  is  a  rule," 
says  Chancellor  Kent,  "which  is  founded  on  natural  justice,  and 
is  recognized  in  every  cultivated  system  of  jurisprudence.  .  .  . 
It  rests  on  the  basis  of  mere  equity  and  benevolence."  ^  Chan- 
cellor Johnson  said,  in  Gadsden  v.  Brown,^  "the  doctrine  of 
subrogation  is  a  pure,  unmixed  equity,  having  its  foundation  in 
the  principles  of  natural  justice;"  and  this  remark  has  been 
twice  cited  with  approval  by  the  Supreme  Court  of  the  United 
States.'  From  the  same  high  authority  two  definite  proposi- 
tions, already  indicated  in  the  preceding  sections,  may  be  de- 


1  Aflalo  V.  Fourdrinier,  6  Binn.  306; 
Wood  V.  Dodgson,  2  Maule  &  S.  195; 
Butler  V.  Birkey,  13  Ohio  St.  514; 
iEtna  Ins.  Co.  v.  Wires,  28  Vt.  93. 

2  A  surety  or  endorser  on  a  note 
who  has  paid  only  a  part  of  the  debt 
for  which  he  is  liable,  leaving  the 
balance  unpaid,  cannot  claim,  by 
subrogation,  the  right  to  participate 
in  the  securities  held  for  the  pay- 
ment of  the  debt.  Bank  i\  Lorwein, 
76  Ark.  245.  Claims  for  supplies 
furnished  to  a  railroad  company 
within  six  months  before  the  appoint- 
ment of  a  receiver  are  not  entitled 
under  any  general  rule  to  precedence 
over  a  lien  expressly  created  by  a 
mortgage  recorded  before  the  con- 
tracts for  such  supplies  were  made. 
Gregg  I'.  Metropolitan  Trust  Co.,  197 
U.  S.  183. 


3  Koboliska  v.  Swehla,  107  Iowa, 
l24. 

<  Hayes  v.  Ward,  4  Johns.  Ch.  123; 
Hoover  v.  Epler,  52  Pa.  522;  K>Tier  v. 
Kyner,  6  Watts,  221;  Wallen's  Ap- 
peal, 5  Pa.  103;  Bleakley's  Appeal,  66 
Id.  191;  Steele's  Appeal,  72  Id.  102; 
Fritch  V.  Bank,  191  Id.  283;  Crippen 
V.  Chappel,  35  Kan.  495;  Spaulding 
V.  Harvey,  129  Ind.  106;  Nalle  v.  Far- 
ish,  98  Va.  130;  Van  Pelt  ?-.  Strick- 
land, 60  Kan.  584;  Aultman  v. 
Bishop,  53  Neb.  545;  Sands  v.  Dur- 
ham, 99  Va.  258;  German  Bank  v. 
United  States,  148  U.  S.  578. 

5  Cheesebrough  v.  Millard,  1  Johns. 
Ch.  412. 

8Speers'  Eq.  37-41. 

7  By  Mr.  Justice  Miller,  in  ^tna 
Life  Ins.  Co.  v.  Middleport,  124  U.  S. 
547,  and  by  Mr.  Justice  White,  in 


CH.  VI.] 


ADJUSTMENT. 


499 


duced — namely,  first,  that  a  surety  is  not  entitled  to  subroga- 
tion until  he  has  paid  the  debt;  ^  and,  secondly,  that  a  volunteer 
is  not  so  entitled.^ 

The  right  of  subrogation  being  an  equitable  one,  it  is  con- 
sequently subject  to  the  general  qualification  by  which  all 
equities  are  affected — namely,  that  it  must  not  be  enforced  to 
the  detriment  of  equal  or  superior  equities  existing  in  other 
parties,^  nor  where  its  enforcement  would  operate  to  the  preju- 
dice or  injury  of  the  creditor;^  and  cannot,  therefore,  be  in- 
sisted upon  until  the  creditor  is  fully  paid  and  satisfied.^  And 
it  has  been  said  that  it  will  not  be  enforced  as  against  a  legal 
right  .^ 

It  is  immaterial  that  the  surety  did  not  know  of  the  existence 
of  the  security  to  which  he  seeks  to  be  subrogated.  Whenever 
he  discovers  its  existence  he  will  be  entitled  to  its  benefit.'^ 

The  equity  of  subrogation  is  one  which  the  surety  is  entitled 


Prairie  State  Bank  v.  United  States, 
164  Id.  231. 

1  Ante,  §  335,  note.  Where  a  debt 
is  payable  by  instalments,  the  right 
of  the  surety  may  be  enforced  from 
time  to  time  on  payment  of  each 
successive  instalment.  Nettleton  v. 
Ramsey,  etc.,  Co.,  54  Minn.  395; 
and  a  partial  payment  will  establish 
the  surety's  right  against  the  princi- 
pal debtor.  Morton  v.  Dillon,  90  Va. 
592. 

2  Ante,  §  337,  note. 

3  Prairie  State  Bank  v.  United 
States,  164  U.  S.  231;  Shimp's  As- 
signed Estate,  197  Pa.  149;  Predohl  r. 
O'SuUivan,  59  Neb.  311;  Hargis  v. 
Robinson,  63  Kan.  686;  Wilkins  v. 
Gibson,  113  Ga.  31.  An  adminis- 
trator is  not  entitled  to  retain  bonds 
wrongfully  pledged  by  the  decedent, 
until  he  is  paid  the  amount  he  has 
expended  in  payment  of  the  dece- 
dent's note  for  which  the  bonds  were 
a  collateral  security.  In  such  a  case, 
the  payment  of  the  note  gives  no 
right  to  subrogation.  Rinaker  ??. 
Dollar  Savings  Fund,   219   Pa.   523. 

*Erb's  Appeal,   2   P.   &   W.   296; 


Wagner  v.  Elliott,  95  Pa.  489;  Miller 
1^.  Stout,  5  Del.  Ch.  259,  ante,  §  330, 
and  notes. 

5  Phtt'nix  Ins.  Co.  v.  First  Nat. 
Bank,  85  Va.  765;  Hayden  v.  Huff,  60 
Neb.  625. 

6  Fink  r.  Mahaffy,  8  Watts,  384. 
In  Morgan  r.  Wordell,  178  Mass.  350, 
it  was  held  that  a  surety  who  has 
paid  a  claim  primarily  due  from  a 
bankrupt  and  seeks  to  prove  such 
payment  against  the  bankrupt  as 
being  subrogated  to  the  rights  of  the 
creditor  under  §  57  of  the  Bank- 
ruptcy Act  of  1898,  is  subject  to  all 
the  disabilities  attached  to  the  cred- 
itor whose  claim  he  has  paid;  and  if 
such  creditor  had  received  a  prefer- 
ence from  the  bankrupt  which  he  had 
not  surrendered,  as  required  by 
§  57(7,  before  any  claim  could  be 
proved  by  law,  this  bars  the  surety 
from  proving  his  claim  by  subroga- 
tion, although  the  preference  was  an 
entirely  separate  transaction  with 
which  the  surety  had  nothing  to  do. 

7  1  Lead.  Cas.  Eq.  144.  See,  also, 
Albion  State  Bank  v.  Knickerbocker, 
125  Mich.  311. 


500  ADJUSTMENT.  [PART  II. 

to  exeicise  against  the  debtor,  but  it  does  not  give  him  the  right 
to  control  the  action  of  the  creditor.  The  creditor  may  pursue 
any  of  his  remedies  which  he  sees  proper  to  use,  and  the  surety 
cannot,  as  a  general  rule,  compel  him  to  resort  to  any  particular 
securities  in  the  first  instance.  Special  circumstances  may,  how- 
ever, take  the  case  out  of  the  general  rule,  and  give  the  surety 
a  right  to  require  the  creditor  to  look  to  certain  liens  before  com- 
ing upon  the  surety.'  In  Pennsylvania,  however,  under  the 
effect  given  to  a  guaranty,  the  creditor  nmst  first  push  the  prin- 
cipal debtor  to  insolvency  before  resorting  to  the  party  second- 
arily liable.^ 

The  surety  may  file  a  bill  to  compel  payment  by  the  principal 
as  soon  as  the  debt  becomes  due ;  and  he  may  make  the  creditor 
a  party  to  the  bill,  and  avail  himself  of  the  creditor's  remedies.^ 

339.  Surety  can  compel  a  creditor  to  make  a  prompt  use 
of  his  remedies. 

\Miilc  it  is  true  that  a  surety  cannot  directly  control  the  action 
of  the  creditor  in  regard  to  the  securities  held  by  the  latter,  it  has, 
nevertheless,  been  considered  that  it  is  the  surety's  right  and  a 
part  of  his  equity  to  see  that  the  creditor  makes  a  prompt  use  of 
the  remedies  in  his  hands,  and  that  nothing  should  be  lost  by 
reason  of  the  creditor's  supineness  or  negligence.  Following  out 
this  thought,  the  courts  of  several  states  in  the  Union  have  es- 
tablished the  rule  that  equity  will  compel  the  creditor  to  sue  at 
the  request  of  the  surety,  and  will  hold  the  surety  discharged 
if  the  request  be  not  complied  with,  provided  that  such  failure 
to  comply  has  resulted  in  actual  injury,  which  must  be  shown 
by  proving  that  the  principal  was  solvent  when  the  request  was 
made,  and  became  insolvent  subsequently ;  and  provided  further, 
that  accompanying  the  request  there  be  an  explicit  notice  that  in 
case  the  creditor  shall  fail  to  sue,  the  surety  will  thereupon  hold 
himself  discharged."*    This  doctrine  has  been  established  in  New 


1  Hayes  v.  Ward,  4  Johns.  Ch.  123 
Kent  V.  Matthews,  12  Leigh,  573 
Railroad  Co.  v.  Claghorn,   1   Speers 


3  1  Lead.  Cas.  Eq.  144;  Dempsey  v. 
Bush,  18  Ohio  St.  376. 

*  Singer  v.  Troutman,  49  Barb.  183; 


Eq.  545;  Irick  v.  Black,  17  N.  J.  Eq.       King  v.  Baldwin,  17  Johns.  384;  Rut- 
189.  ledge    v.    Greenwood,    2    Dess.    389; 

2  Parker  v.  Culvertson,  1  Wall.  Jr.  Bruce  v.  Edwards,  1  Stew.  11;  Cope  v. 
149;  Marberger  v.  Pott,  16  Pa.  13;  Smith,  8  S.  &  R.  110;  Hellen  r.  Craw- 
Reigart  v.  White,  52  Id.  438.  ford,  44  Pa.  105;  Conrad  v.  Foy,  68 

Id.  381. 


CH.  VI.] 


ADJUSTMENT. 


501 


York,  Pennsylvania,  Alabama,  Arkansas  and  some  other  states ;  ^ 
but  it  has  been  rejected  as  unsound  in  most  of  the  states  of  the 
Union  } 

The  surety  may  be  relieved  from  his  obligation  by  any  vari- 
ation of  the  contract  between  the  creditor  and  principal,  made 
without  the  surety's  consent;  for  he  has  a  right  to  say,  in  such 
a  case,  "  non  hwc  in  feeder  a  vent."  ^ 

34:0.  Marshalling. 

The  doctrine  of  Marshalling  grows  out  of  the  principle  that 
a  party  having  two  funds  to  satisfy  his  demands  shall  not,  by 
his  election,  disappoint  a  party  who  has  only  one  fund.  If  A., 
for  example,  holds  a  first  mortgage  against  two  parcels  of  real 
estate,  and  B.  is  the  owner  of  a  subsequent  mortgage  against 
only  one  of  these  parcels,  natural  justice  would  seem  to  require 
that  A.  should  not  resort  in  the  first  instance  to  the  parcel  cov- 
ered by  B.'s  mortgage,  but  should  endeavor  to  collect  his  debt 
from  the  lot  charged  with  his  encumbrance  alone,  and  resort  to 
the  portion  covered  by  B.'s  mortgage  only  for  the  purpose  of 
making  up  any  deficiency.  Justice  further  requires  that  if  A. 
does  resort,  in  the  first  place,  to  the  parcel  covered  by  B.'s  mort- 
gage, the  latter,  thus  disappointed  in  his  security,  shall  be  sub- 
rogated to  A.'s  rights  as  against  the  other  parcel ;  and  in  this  way, 
while  sufficient  scope  is  given  to  the  rights  of  one  party,  protec- 
tion is,  at  the  same  time,  afforded  to  those  of  the  other.^ 

341.  Usually  enforced  through  the  medium  of  subrogation. 

It  will  be  seen  from  the  above  illustration  that  the  equity  of 
marshalling  would  seem  to  be  capable  of  being  carried  into  effect 


1  See  preceding  note. 

2  See  American  note  to  Rees  v. 
Berrington,  2  Lead.  Cas.  Eq.  *974. 

3  See  the  language  of  Lord  Eldon, 
as  to  varying  the  contract  by  giving 
time,  in  Samuell  v.  Howarth,  3  Mer. 
272-278,  quoted  by  North,  J.,  in 
Clarke  v    Birley,  41  Ch.  D.  433-434. 

*  In  support  of  the  general  doctrine 
stated  in  the  text,  see  Cheesebrough 
V.  Millard,  1  Johns.  Ch.  409;  Ramsey's 
Appeal,  3  Watts,  228;  Bruner's  Ap- 
peal, 7  W.  &  S.  269;  Hannegan  v. 
Hannah,    7    Blackf.    355;    Briggs   v. 


Planters'  Bank,  1  Freem.  Ch.  574; 
Cannon  v.  Hudson,  5  Del.  Ch.  112; 
Gilliam  v.  McCormack,  85  Tenn.  597; 
Equitable  Mortgage  Co.  v.  Lowe,  53 
Kan.  39;  Loveland  v.  Cooley,  59 
Minn.  259;  People's  B.  &  L.  Ass'n  v. 
Mayfield,  42  S.  C.  424;  American  note 
to  Aldrich  v.  Cooper,  2  Lead.  Cas.  Eq. 
260  et  seq.  (4th  Am.  ed.).  The  doc- 
trine is  applied  only  between  cred- 
itors and  others  with  similar  equities. 
Miller  v.  Cook,  135  111.  190.  The 
right  to  have  the  creditor  with  the 
double   security   resort   first   to   the 


502 


ADJUSTMENT. 


[part  II. 


in  one  of  two  ways,  either,  first,  by  restraining  the  party  against 
whom  it  exists  from  using  a  security  to  the  injury  of  another;  or, 
second,  by  giving  the  party  entitled  to  the  protection  of  this 
equity  the  benefit  of  another  security  in  lieu  of  the  one  of  which 
he  has  been  disappointed.  In  other  words,  the  right  might  be 
enforced  either  by  injunction  against  the  paramount  creditor, 
or  by  subrogation  in  favor  of  the  junior  creditor.^  In  practice, 
however,  the  latter  of  these  two  methods  is  the  one  most  usually 
employed;  and  the  sounder  doctrine  seems  to  be  that  the  first 
of  the  two  ought  not  to  be  resorted  to  except  under  very  peculiar 
circumstances.  It  is  true  that  there  are  many  dicta  to  the  effect 
that  a  creditor  will  be  restrained  from  resorting  to  one  of  two 
sources  of  payment,  and  compelled  to  look  to  the  other;  ^  but  in 
practice  the  rule  has  been  seldom  applied  (except  under  peculiar 
circumstances),  because  it  would  appear  to  be  unjust  that  a  cred- 
itor who  had  taken  ]:)ains  to  obtain  ample  security  should  be 
limited  in  his  rights  of  enforcement,  and  exposed  to  delay;  more 
especially  as  the  ends  of  justice  can  in  general  be  completely  at- 
tained by  the  application  of  the  doctrine  of  subrogation.^  A 
paramount  encumbrancer  ought  to  be  allowed  to  choose  the 


fund  upon  which  the  other  has  no 
hen,  is  not  affected  by  a  conveyance 
made  by  the  debtor  after  the  hens 
have  attached.  Dize  v.  Beacham, 
SI  Md.  603. 

This  rule  is,  however,  subject  to 
this,  among  other  quahfications,  viz.: 
that  both  funds  must  be  within  the 
jurisdiction  and  control  of  the  court, 
except  in  the  rare  cases  in  which  it  is 
clear  that  the  creditor  having  the 
two  funds,  will  sustain  no  loss,  de- 
lay, or  additional  expense  if  required 
to  resort  first  to  the  fund  without 
the  jurisdiction.  Where  there  is  a 
paramount  mortgage  upon  land,  part 
of  which  is  conveyed  by  the  mort- 
gagor, equity  will  throw  the  burden 
upon  the  land  that  remains,  where 
the  grantee  has  paid  full  value,  or 
where  the  grantor  has  covenanted 
against  encumbrances;  but  the  rule 
being  based  upon  intention,  expressed 
or  implied,  will  not  obtain  in  favor 
of  a  purchaser  at  a  sheriff's  foreclos- 


ure sale.  Sternberger  v.  Sussmann, 
69  N.  J.  Eq.  199. 

1  Bank  of  Commerce  v.  First  Nat. 
Bank,  150  Ind.  .588,  590  (citing  the 
text). 

2Aldrich  v.  Cooper,  8  Ves.  382; 
Clowes  V.  Dickenson,  9  Cow.  403; 
Greenwood  v.  Taylor,  1  Russ.  &  My. 
185;  Agricultural  Bank  v.  Fallen,  8 
Sm.  &  Marsh.  357;  Thompson  v. 
Murray,  2  Hill  Ch.  213;  N.  Y.  Steam- 
boat Co.  V.  N.  J.  Steamboat  Co.,  1 
Hopk.  460;  Evans  v.  Duncan,  4 
Watts,  24;  Mcllvain  v.  Assurance  Co., 
93  Pa.  30;  First  Nat.  Bk.  of  Rock 
Springs  v.  Roder,  52  C.  C.  A.  253; 
Orr  V.  Blackwell,  93  Ala.  212;  Can- 
non V.  Hudson,  6  Houst.  21. 

3  Mason  v.  Bogg,  2  My.  &  Cr.  448; 
Neff's  Appeal,  9  W.  &  S.  36;  Ram- 
sey's Appeal,  2  Watts,  228;  Shunk's 
Appeal,  2  Pa.  304;  Arna's  .\ppeal,  65 
Id.  74;  Dunlap  v.  Clements,  7  Ala. 
530;  Moses  v.  Ranlet,  2  N.  H.  488; 
Findlay    v.    Hosmer,    2    Conn.    350; 


CH.  VI.]  ADJUSTMENT.  o03 

method  of  collecting  his  debt,  and  all  that  a  junior  creditor  can 
fairly  ask  is  that  he  shall  have  liberty  to  resort  to  another  source 
of  payment  in  place  of  the  one  of  which  he  has  been  deprived. 
Of  course,  where  both  funds  are  in  court,  or  under  its  immediate 
control,  the  case  is  different.  The  rights  of  every  one  can  be  pro- 
tected, and  there  is  no  harm  in  throwing  the  paramount  creditor 
at  once  on  the  singly-charged  fund.^  So,  too,  when  the  para- 
mount creditor  has  been  guilty  of  some  negligence  or  default,  as 
where  he  has  put  one  of  the  funds  beyond  his  own  reach  with  the 
full  knowledge  that  his  debt  cannot  be  satisfied  out  of  the  other 
fund  without  injury  to  the  interests  of  third  persons,  he  may  be 
restrained  from  coming  in  upon  the  second  fund ;  ^  or  if  allowed 
to  come  in  must  deduct  from  the  amount  of  his  claim  the  value 
of  the  fund  he  has  put  beyond  his  reach. ^  Where  the  party  who 
has  two  funds,  puts  one  of  them  beyond  his  reach  without  notice 
that  another  person  has  an  interest  in  the  other,  it  has  been  held 
that  he  will  not  subsecjuently  be  restrained  from  coming  in  on  the 
other. ^ 

These,  however,  are  exceptions,  and  perhaps  the  general  rule 
in  this  country  may  be  stated  to  be,  that  the  right  of  marshalling 
is  usually  enforced  through  the  ecjuities  of  subrogation  and  con- 
tribution. 

Nevertheless,  there  are  decisions  in  some  of  the  states  in  favor 
of  the  doctrine  of  compulsion ;  '^  while  in  England  there  is  some 
reason  for  thus  restraining  the  creditor,  as  under  the  rule  in 
Copis  V.  Middleton,  the  use  of  the  doubly-charged  security  would 

West  V.  Bank  of  Rutland,  29  Vt.  403;  Bank  of  Commerce  v.  First  National 

Brinkerhoff  v.  Marvin,  5  Johns.  Ch.  Bank,  150  Ind.  588;  Bank  of  Hunt- 

320;   Evertson  v.    Booth,    19   Johns.  ington    v.    Simms,    49   W.    Va.    442; 

486;   Palmer   v.  Snell,    111    111.    161;  Ames  v.  Witbeck,  179  111.  458;  Allen 

Morton  v.  Grafflin,  68  Md.  545;  Hud-  v.  Perrine,  103  Ky.  516. 

kins  V.  Ward,  30  W.  Va.  204;  Van  3  Building  Ass'n  v.  Fellers,  96  Va. 

Pelt    V.    Strickland,    60    Kan.    584;  337;      .Vnderson      v.     McCloud-Love 

Anthes  v.  Schroeder,  68  Neb.  370.  Live  Stock  Co.,  58  Neb.  670. 

1  See  American  note  to  Aldrich  v.  *  The  Provident  Loan,  etc.,  Ass'n 
Cooper,  2  Lead.  Cas.  Eq.  276.  See,  v.  Carter,  107  Wis.  383;  Pitts  v. 
also,  Robeson's  Appeal,  117  Pa.  628;  American  Freehold  Land  Mtg.  Co., 
Ball  V.  Setzer,  33  W.  Va.  444,  and  123  Ala.  469;  Sudbury  v.  Merchant- 
Howser  v.  Cruikshank,  122  Ala.  256.  ville  Building  &  Loan  Ass'n,  57  N.  J. 

2  Stevens  v.  Cooper,  1  Johns.  Ch.  Eq.  342;  Bridgewater  Mills  v. 
425;     Paxton     v.    Harrier,     11     Pa.  Strough,  98  Va.  721. 

312;    Parkman    v.    Welch,    19    Pick.  ^  Ante,   notes  to   §§338  and   339; 

231;  Berry  v.  The  Church,  7  Md.  564;       Bishop    Bailey    Ass'n    v.    Kennedy 
Mount  V.  Potts,  23  N.  J.  Eq.   188;       (N.  J.  Eq.),  12  Atl.  R.  141. 


504  ADJUSTMENT.  [pART  11. 

operate  as  its  extinguishment,  and  it  could  not  be  kept  alive  for 
the  benefit  of  the  subsequent  encumbrances.' 

342.  How  the  equity  of  marshalling  is  soiiietiiues  qualified. 

The  equity  of  marshalhng  is  subject  to  certain  qualifications 
which  it  has  become  necessary  to  lay  down  for  the  purpose  of 
reaching  exact  justice. 

It  cannot  be  used  to  prejudice  those  who  have  an  equal  or  su- 
perior equity  against  the  debtor.'  Thus,  if  the  land  of  the  wife 
is  mortgaged  for  the  husband's  debt,  a  subsequent  judgment- 
creditor  of  the  husband  cannot  claim  that  the  mortgagee  shall 
proceed  first  upon  the  property  of  the  wife,  nor  can  he  claim 
to  be  subrogated  to  the  mortgagee's  security  against  the  wife, 
because  the  equity  of  the  latter  is  superior  to  that  of  the  hus- 
band, and  is  necessarily  superior  to  the  equities  of  his  cred- 
itors.^ On  the  other  hand,  the  exercise  of  the  right  of  mar- 
shalling cannot  be  defeated  by  the  intervention  of  creditors  of 
a  later  date.'* 

As  a  general  rule,  this  equity  will  not  exist  as  against  a  creditor 
of  several  debtors  in  favor  of  a  creditor  of  one  of  the  debtors. 
The  two  funds  must  belong  to  the  same  person.  Thus,  if  A.  and 
B.  are  debtors  to  C,  and  A.  is  also  a  debtor  to  D.,  and  C.  obtains 
satisfaction  out  of  A.,  D.  cannot  claim  to  be  subrogated  to  C.'s 
rights  against  B.^  But  this  mle  may  admit  of  some  exceptions. 
If  A.,  in  the  case  above  put,  were  merely  a  surety,  then  it  would 
be  B.'s  duty  to  discharge  the  debt  and  if  A.'s  property  were  taken 
for  that  purpose,  his  creditors  would  have  the  right  to  be  subro- 
gated to  the  remedies  of  the  joint  creditors  against  B.^    The  duty 

1  American  note  to  Aldrich  v.  *  Withers  v.  Carter,  4  Gratt.  407; 
Cooper,  2  Lead.  Cas.  Eq.  280.  Ziegler    v.     Long,     2     Watts,     205; 

2  See,  particularly.  Cycle  Co.  v.  Bruner's  Appeal,  7  W.  &  S.  269; 
Waggener,  59  Kan.  27L  Also,  Bank  of  Commerce  v.  First  Nat. 
Farmers    and    Mechanics'    Bank    v.  Bank,  150  Ind.  588. 

Anthony,  39  Neb.  343;  Houston's  s  Ayres  v.  Husted,  15  Conn.  504; 
Appeal,  176  Pa.  90;  Webb  v.  Hunt,  Dorr  v.  Shaw,  4  Johns.  Ch.  17;  Wise 
2  Ind.  Ter.  612;  National  Bank  v.  v.  Shepherd,  13  111.  41;  £;x  joar/e  Ken- 
Exchange  Bank,  110  Ga.  692.  dall,  17  Ves.  520;  Fessler  v.  Hicker- 

3  Reynolds  v.  Tooker,  18  Wend.  nell,  82  Pa.  150;  Jones's  Estate,  15 
591;  Ayres  v.  Husted,  15  Conn.  504;  Phila.  584;  Mason  t'.  Hull,  55  Ohio, 
Johns  V.  Reardon,  11  Md.  405;  In  re  256;  Carter  v.  Tanners'  Leather  Co., 
Hobson.  81   la.  392;  Gilliam  v.  Mc-  196  Mass.  163. 

Comiack,    85    Tenn.    597;    Hall    v.  "King  v.  McVickar,  3  Sandf.  Ch. 

Hyer,  48  W.  Va.  353.  192;   Wise  v.   Shepherd,    13   111.   41; 


CH.  VI.]  ADJUSTMENT.  505 

of  contributions  between  joint  debtors  may  also  in  some  instances 
be  enforced  by  the  creditors  of  one.^ 

The  two  funds  must  actually  exist ;  the  doctrine  of  marshall- 
ing cannot  be  invoked  for  the  purpose  of  raising  a  fund.^ 

343.  Its  application  in  cases  of  bankruptcy . 

The  result  of  throwing  a  creditor,  who  lias  two  securities  for 
his  debt,  upon  the  singly-charged  fund,  is  of  course  to  effect  a 
payment  of  the  debt  so  far  as  that  fund  will  extend.  Suppose, 
now,  the  general  assets  of  the  debtor  are  insufficient  to  meet  all 
his  liabilities,  the  question  will  then  naturally  arise,  whether 
the  creditor  who  has  realized  a  portion  of  his  debt  shall  be  en- 
titled to  a  dividend  on  the  whole  amount  of  his  claim,  or  only 
upon  the  balance  remaining  after  the  approjiriation  of  the  fund 
which  has  been  exchisively  under  his  control. 

The  rule  in  bankruptcy  was  that  the  creditor  was  only  entitled 
to  prove  for  the  residue;  the  right  to  resort  to  the  prior  security 
being  treated,  pro  tanto,  as  payment.^  But  this  rule  is  peculiar 
to  the  bankrupt  law,  and  the  better  doctrine  is  that  it  is  not  ap- 
plicable to  cases  outside  of  that  law.  Therefore,  the  rule  would 
seem  to  be  that  the  circumstance  that  the  creditor  had  a  right  to 
resort  to  a  fund  which  is  open  to  him  alone,  shall  not  ))reclude 
him  from  coming  in  upon  a  fund  of  an  insolvent  estate  which  is 
common  to  all  creditors,  and  obtaining  a  dividend  on  the  full 
amount  of  his  debt,  subject  to  the  common-sense  cjualification 
that  the  total  so  received  by  him  shall  not  exceed  the  sum  due.** 

There  has,  indeed,  been  some  difference  of  authority  upon 
this  point.  But  it  may  be  doubted  whether  the  case  of  Green- 
wood V.  Taylor,-^  where  the  doctrine  was  laid  down  that  the  rule 

Quinnipiac   Brewing  Co.   v.   Fitzgib-  creditors  are  permitted   to  be   peti- 

bons,  73  Conn.  191.  tioners   in   respect   to   the   excess   of 

1  See  American  note  to  Aldrich  v.  their  demand  over  the  value  of  the 

Cooper,  2  Lead.  Cas.  Eq.  222.  security.     See  §  59  of  the  act. 

^  The   Professional  Life  Assurance  ^  The  creditors  of  an  insolvent's  es- 

Co.'s  Case,  L.  R.  3  Eq.  668.  tate  are  the  equitable   owners,   and 

3  By  the  20th  section  of  the  Bank-  their  interests  are  determined  by  the 

ruptcy  Act  of  1867  the  creditors  of  a  amount  of  their  respective  claims  at 

bankrupt  who  held  security  hatl  the  the  dale  of  the  aftsignmcnt.      Ciraefi's 

option  either  to  prove  for  the  balance  Appeal,  79  Pa.  146;  Williams  v.  Over- 

of  their  claim,   or  to  surrender  the  holt,  46  W.  Va.  339.     See,  however, 

property  held  as  security,  and  prov,'  Third  Nat.  Bank  v.  Lanahan,  66  Md. 

for  their  whole  debt;  and  under  the  461. 

present  Bankruptcy  Act  of  1898,  such  »  i  Russ.  &  Myl.  185. 


506  ADJUSTMENT.  [PART  II. 

in  bankruptcy  applied  also  to  the  administration  of  insolvent 
estates,  can  now  be  considered  as  law;  ^  and  the  decisions  in  the 
American  courts  which  have  assumed  the  same  position,  will 
perhaps  be  reconsidered  when  the  point  comes  up  again  in  the 
tribunals  where  they  were  rendered.-  It  is  fair  to  say,  however, 
that  while  in  several  of  the  states  the  courts  have  refused  to  fol- 
low that  decision,  yet  there  are  recent  rulings  the  other  way.^ 

344.  Cases  in  which  this  equity  is  usually  applied  in  the 
United  States  ;  doctrine  of  Fosdick  v.  Schall. 

The  cases  which  have  ordinarily  invited  the  application  of  the 
equity  of  marshalling  in  this  country  are  somewhat  different 
from  those  which  have  called  it  into  play  in  England.  In  Eng- 
land this  equity  was  most  frequently  employed  in  so  ordering  the 
claims  of  creditors  entitled  to  payment  out  of  the  real  estate  of  a 
deceased  debtor,  as  not  to  interfere  with  those  whose  remed)' 
was  confined  to  personalty.  Its  application  to  debtors'  estates 
during  their  lifetime  was  much  less  frequent.  In  the  United 
States,  however,  the  necessity  for  marshalling  the  assets  of  a  de- 
cedent has  been  very  much,  if  not  altogether,  done  away  with  by 
the  general  rule  that  estates  of  all  kinds,  both  real  and  personal, 
are  considered  assets  for  the  payment  of  debts,  and  that  specialty 
and  simple  contract  creditors  stand,  as  respects  both  classes  of 
property,  upon  the  same  footing.  But  the  ecjuity  of  marshalling 
has  been  frequently  applied  in  this  country  to  the  adjustment  of 
the  liabilities  of  debtors  during  their  lifetime,  and  it  is  now  an 
ordinary  part  of  the  machinery  by  which  courts  of  equity,  or 
courts  wherein  equitable  principles  are  recognized,  arrive  at  just 
conclusions  in  the  application  of  a  debtor's  property  to  the  dis- 
charge of  his  liabilities. 

This  equity  is  enforced  for  the  benefit  of  junior  encumbrancers; 
as  for  example,  for  the  benefit  of  a  mortgagee  of  a  particular 
piece  of  real  estate,  by  subrogating  him  to  the  general  lien  of  a 
prior  judgment-creditor.  It  is  enforced,  also,  very  frequently 
for  the  protection  of  sureties,  by  enabling  them  to  make  u.se  of 

1  Mason  v.  Bogg,  2  My.  &  Cr.  448.  Hawkins      i".     Mahoney,     71     Minn. 

2  Note  to  Aldrich  v.  Cooper,  2  155;  Bank  Comrs.  v.  Trust  Corn- 
Lead.  Cas.  Eq.  286.  pany,  70  N.  H.  5.'?6.    See  some  cases 

3  West  V.  The  Bank  of  Rutland,  19  collected  in  notes  to  In  re  Frasch,  32 
Vt.  40.3;  Shunk's  Appeal,  2  Pa.  304;  Am.  Law  Reg.  &  Rev.,  p.  453,  458 
Bair  &  Shenk's  Appeal,  82  Id.  113,  (May,  1893). 

Findlay    v.    Hosmer,    2   Conn.    350; 


CH.  VI.]  ADJUSTMENT.  507 

the  creditor's  securities  as  against  their  principal.  The  method 
of  applying  the  doctrine  in  both  these  instances  has  already  been 
explained . 

Under  the  general  equity  of  marshalling  assets  may  also,  per- 
haps, fall  a  doctrine  which  is  of  quite  modern  birth  and  develop- 
ment, but  which  has  been  very  frequently  applied,  during  the 
past  twenty  years  and  more,  by  the  Federal  courts  and  by  other 
tribunals  in  this  country  in  the  foreclosure  of  mortgages  of  rail- 
ways.^ The  doctrine  is  that  where  property  is  placed  in  the 
hands  of  receivers  to  be  administered  by  a  Court  of  Chancery, 
the  court  will,  under  certain  circumstances,  give  to  certain  claim- 
ants, principally  those  for  labor  and  material,  priority  over  ex- 
isting mortgages.  This  priority  will  be  given  not  only  to  claims 
which  have  arisen  during  the  receivership,  but  also  to  those  which 
may  have  accrued  within  a  certain  limited  time,  usually  from 
three  to  six  months,  prior  to  the  appointment  of  the  receiver.' 

Ordinarily,  when  a  mortgagee  applies  for  and  obtains  a  re- 
ceiver, the  income  which  is  thus  collected  is  applicable  to  the 
payment  of  the  interest  or  principal  of  the  mortgage  debt;  but 
it  is  now  settled  by  many  decisions  of  the  highest  tribunals  in  the 
country,  that  if  the  court  finds  that  such  income  should  equitably 
be  applied  to  the  payment  of  claims,  such  as  those  above  men- 
tioned, which  might,  but  for  the  receivership,  have  been  paid  out 
of  the  fund,  it  will  direct  such  claims  to  be  paid  in  preference  to 
the  mortgages. 

This  doctrine  is  usuallv  known  as  the  doctrine  in  Fosdick  v. 


1  In  Wood  V.  Guarantee  Trust  Co.,  And  in  Merriam  v.  Victory  Mining 
128  U.  S.  421,  Mr.  Justice  Lamar  re-  Co.,  .37  Oreg.  321,  it  was  said  that, 
marked  that  " the  doctrine  of  Fosdick  "the  doctrine  of  Fosdick  v.  Schali 
V.  Schali  has  never  yet  been  applied  does  not  apply  to  claims  against  or- 
to  any  case  except  that  of  a  railroad.  dinary  private  corporations."  The 
The  case  lays  great  emphasis  on  the  doctrine  of  Fosdick  v.  Schali,  held 
consideration  that  a  railroad  is  a  pe-  not  applicable  to  the  case  of  a  rail- 
culiar  property  of  a  public  nature  and  road  which  was  not  a  common  car- 
discharging  a  great  public  work.  ricr,  but  one  built  and  operated  by 
There  is  a  broad  distinction  between  the  owner  of  a  coal  mine  for  the  ex- 
such  a  case  and  that  of  a  purely  pri-  elusive  purpose  of  hauling  the  com- 
vate  concern.  We  do  not  undertake  pany's  coal.  First  National  Bank  v. 
to  decide  the  question  here,  but  only  WjTnan,  16  Colo.  App.  472. 
point  it  out."  See,  also.  Int.  Trust  2  gee  High  on  Receivers,  §§  3n4a 
Co.  V.  United  Coal  Co.,  27  Colo.  246,  et  seq.;  Gregg  v.  Metropolitan  Trust 
and  the  language  of  Dean,  J.,  in  Co.,  197  U.  S.  183. 
Cowan  V.  Plate  Glass  Co.,  184  Pa.  14. 


508  ADJUSTMENT.  [PART  II. 

Schall,  it  having  been  first  distinctly  enunciated  by  the  Supreme 
Court  of  the  United  States  in  the  year  1878  in  that  case/  al- 
though it  had  been  applied  in  some  previous  decisions  by  the 
Federal  Circuit  Courts  and  by  the  courts  of  some  states.-  And 
as  Fosdick  v.  Schall  has  been  expressly  approved  in  a  decision 
made  by  the  same  court  twenty  years  thereafter,  it  may  be  taken 
as  a  fair  title  for  the  rule  under  consideration.^ 

The  doctrine  had,  indeed,  during  this  interval  been  recognized, 
and  even  extended  in  many  cases,  though  the  courts  have  always 
displayed  great  caution  in  its  application.''  It  has  been  based 
on  various  considerations,  principally  three:  1st,  that  where  in- 
come has  been  diverted  from  the  payment  of  current  supplies 
and  wages  and  applied  to  pay  interest  on  mortgages,  the  fund 
thus  diverted  should  be  restored;  2d,  that  where  mortgagees 
have  suffered  a  railroad  company  to  operate  the  road  and  remain 
in  possession  after  default,  the  company  may  be  considered  as 
the  agent  of  the  bondholders,  whose  equity  nmst  yield  to  those 
whose  labor  or  materials  have  kept  the  road  in  running  order  for 
the  mortgagee's  benefit;  and,  3d,  that  he  who  comes  into  equity 
to  seek  the  aid  of  a  receivership,  must  do  equity  to  meritorious 
claims.  It  will  be  observed,  therefore,  that  the  rules  of  law  or 
equity  upon  which  this  doctrine  is  based  are  either  diversion, 
or  agency,  or  that  "  he  who  seeks  equity  nmst  do  equity." 

It  is  probable  that  the  first  of  these  rules  may  be  the  true 
basis  for  this  doctrine,  and  such  would  seem  to  be  the  view 
taken  of  the  matter  in  the  latest  decisions  of  the  Supreme  Court. ^ 

1  Fosdick  V.  Schall,  99  U.  S.  23.5.  were  not  rendered  by  laborers  in  the 

-2  These  decisions,  or  most  of  them,  furtherance  of  the  railroad's  business, 

will  be  found  collected  in  a  paper  read  but   in  a   logging  venture  in   which 

before  the  American  Bar  Association  the  railroad  was  chiefly  engaged  at 

at  the  session  of  1879.    See  proceed-  the  time,  such  laborers  are  not  en- 

ings  of  the   American   Bar  Associa-  titled  to  a  priority  in  the  payment 

tion,  August,  1879.  of  such  services  over  the  mortgage 

3  \'irginia  &  Ala.  Coal  Co.  v.  Cen-  lien.     Security  Trust  Co.   v.   Goble 

tral  R.  R.  &  Banking  Co.,  170  U.  S.  R.  R.  Co.,  44  Oreg.  .370. 

365.  5  See  the  language  of  Chief  Justice 

<  See  Burnham  v.  Bowen,  111  U.  S.  Fuller  in  Morgan,  etc.,  Co.  v.  Texas 
776;  Miltenberger  r.  Logansport  R.  Central  Railway,  137  U.  S.  197,  re- 
Co.,  106  Id.  286;  Union  Trust  Co.  v.  peated  by  him  in  Quincy,  Missouri 
Souther,  107  Id.  591;  Union  Trust  Co.  and  Pacific  Railroad  Co.  v.  Humph- 
V.  111.  Midland  Ry.  Co.,  117  Id.  434;  reys,  145  Id.  103;  and  of  Mr.  Justice 
Karn  &  Hickson  v.  Rorer  Iron  Co.,  White  in  the  Virginia  and  Alabama 
86  Va.  754;  Le  Hote  v.  Boyet,  85  Coal  Co.  v.  The  Central,  etc.,  R.  R. 
Miss.  636.     But  where  the  services  Co.,  170  U.S.  355-364.    Moreover,  in 


CII.  VI.] 


ADJUSTMENT. 


509 


The  subject,  therefore,  may,  with  great  propriety,  be  noticed 
under  the  general  equity  of  marshalling  assets,  for  if  the  rule  un- 
der consideration  is  based  upon  the  theory  of  restoring  property 
which  has  been  wrongfully  diverted,  its  application  is  only  in 
accordance  with  the  general  principles  of  adjustment  which 
have  been  considered  in  this  chapter.^ 


Hammerley  v.  Mercantile  Trust  and 
Deposit  Co.,  12.3  Ala.  596;  Pickering 
V.  Townsend,  118  Id.  351;  Mersick  v. 
Hartford  Railroad  Co.,  76  Conn.  11; 
and  Cambria  Iron  Co.  v.  Union  Trust 
Co.,  154  Ind.  291,  no  diversion  was 
shown  and  the  application  of  the 
doctrine  refused.  See,  also.  Inter- 
national Trust  Co.  V.  T.  B.  Townsend 
Brick  &  Contracting  Co.,  '67  C.  C.  A. 
396. 

1  In  Fosdick  v.  Schall  the  following 
language  was  used  by  Waite,  C.  J., 
and  may  usefully  be  referred  to  as 
giving  the  grounds  upon  which  the 
doctrine  was  placed :  "  Railroad  mort- 
gages," he  says,  "and  the  rights  of 
railroad  mortgagees  are  compara- 
tively new  in  the  history  of  judicial 
proceedings.  They  are  peculiar  in 
their  character,  and  affect  peculiar 
interests.  .  .  .  When  companies  be- 
come pecuniarily  embarrassed  it  fre- 
quently happens  that  debts  for  labor, 
supplies,  equipment  and  improve- 
ments are  permitted  to  accumulate, 
in  order  that  bonded  interest  may 
be  paid  and  a  disastrous  foreclosure 
postponed,  if  not  altogether  avoided. 
In  this  way  the  daily  and  monthly 
earnings,  which  ordinarily  should  go 
to  pay  the  daily  and  monthly  ex- 
penses, are  kept  from  those  to  whom 
in  equity  they  belong,  aind  used  to 
pay  the  mortgage  debt.  The  income 
out  of  which  the  mortgagee  is  to  be 
paid  is  the  net  income  obtained  by 
deducting  from  the  gross  earnings 
what  is  required  for  necessary  op- 
erating and  managing  expenses, 
proper    equipment    and    useful    im- 


provements.     Every   railroad   mort- 
gagee in  accepting  his  security,  im- 
pliedly agrees  that  the  current  debts 
made  in  the  ordinary  course  of  busi- 
ness  shall  be  paid  from  the  current 
receipts  before  he  has  any  claim  upon 
the  income.     If  for  the  convenience 
of  the  moment  something  is  taken 
from   what  may  not  improperly  be 
called  the  current  debt  fund,  and  put 
into  that  which  belongs  to  the  mort- 
gage creditors,  it  certainly  is  not  in- 
equitable for  the  court,  when  asked 
by  the  mortgagee  to  take  possession 
of  the  future  income  and  hold  it  for 
their  benefit,  to  require  as  a  condi- 
tion of  such  an  order  that  what  is 
due  from  the  earnings  to  the  current 
debt  shall  be  paid  by  the  court  from 
the    future    current    receipts    before 
anything   derived   from   that   source 
goes  to  the  mortgagees.  ...  If  the 
mortgagee  calls  upon  a  court  of  chan- 
cery to  put  forth  its  extraordinary 
powers   and    grant    him    purely    eq- 
uitable relief,  he  may,  with  propriety, 
be  required  to  submit  to  the  operation 
of  a  rule  which  always  applies  in  such 
cases,  and  do  equity  in  order  to  get 
equity."     The  same  judge  expressed 
substantially  the  same  views  in  the 
later  case  of  Burnham  v.  Bowen,  111 
U.  S.  780.    See,  also,  the  remarks  of 
Mr.   Justice   Bradley,   in   the   Union 
Trust  Co.  V.  Illinois  Midland  Ry.  Co., 
117   U.  S.  455-456;   of   Dean,  J.,  in 
Cowan  V.  Plate  Gla.ss  Co.,  184  Pa.  14; 
the  opinions  in  Kneeland  v.  Amer- 
ican Loan  and  Trust  Co.,  136  U.  S. 
89,  and  96;  Thomas  v.  Western  Car 
Co.,  149  Id.  95-110;  Illinois  Trust  & 


510  ADJUSTMENT.  [pART  II. 

345.  Marshalling  as  applied  to  estates  of  decedents. 

The  application  of  this  equity  to  the  administration  of  estates 
of  decedents  may  be  briefly  noticed. 

According  to  the  law,  as  it  formerly  existed  in  England,  the 
ecjuity  of  marshalling  was  frequently  exercised  in  favor  of  simple 
contract  creditors,  when  the  personalty,  which  then  constituted 
the  only  fund  for  the  payment  of  debts,  had  been  wholly  or 
partially  exhausted  b}^  superior  creditors  who  might  have  re- 
sorted to  real  estate,  viz.,  by  specialty  creditors,  by  mortgagees, 
or  by  vendors  claiming  a  lien  for  unpaid  purchase-money.^  But 
in  the  United  States,  the  property  of  a  decedent,  of  all  kinds, 
is  applicable  to  the  payment  of  his  debts,  and  the  same  rule  now 
exists,  by  statute,  in  England."  Hence  the  equity  of  marshalling 
is  no  longer  resorted  to  for  the  purpose  of  regulating  the  rights 
of  different  sets  of  creditors  of  a  decedent's  estate;  but  is  applied 
principally,  if  not  altogether,  in  the  settlement  of  the  questions 
which  arise  between  different  claimants  to  the  residuum  of  the 
estate  after  the  payment  of  the  debts.'"'  Questions  of  this  kind 
arise  in  this  way:  The  assets  of  a  decedent  are  not  all  equally 
applicable  to  the  payment  of  his  debts,  but  are  liable  to  be  ap- 
plied only  in  a  certain  order,  which  varies  in  different  states  of 
the  I^ion,  being  in  some  rather  general,  in  others  strictly  defined 
and  minute.  Now,  it  is  an  almost  universal  rule  that  the  general 
personal  estate  is  the  primary  fund  for  the  payment  of  debts,  and, 
therefore,  ought  to  be  resorted  to  for  that  purpose  before  articles 
which  have  been  specifically  bequeathed  are  taken.  A  person, 
therefore,  to  whom  there  has  been  a  specific  bequest  of  a  chattel, 
has  a  right  to  say  that  the  general  personal  estate  shall  be  ex- 
hausted in  order  to  pay  debts,  before  recourse  is  had  against  his 
specific  legacy;  in  other  words,  the  assets  of  a  decedent  will  be 
marshalled  in  favor  of  a  specific  legacy,  and  against  the  general 
personal  estate. 

Again,  two  or  more  parties  interested  in  an  estate  may  stand 
exactly  upon  the  same  footing,  so  far  as  respects  the  liability  of 
their  interests  to  be  taken  for  the  payment  of  the  decedent's 
debts.    Now,  if  the  interest  or  share  of  one  of  these  parties  is 

Savings  Bank  v.  Doud,  44  C.  C.  A.  Ry.  Co.  v.  Carnegie  Steel  Co.,   176 

389;    Virginia    &.    Ala.    Coal    Co.    v.  Id.  285. 

Central   R.   R.   &   Banking  Co.,   170  i  Adams's  Eq.  275. 

U.    S.    365;    Gregg    v.    Metropolitan  2  3  and  4  Will.  IV.,  c.  104. 

Trust  Co.,   197  U.  S.   183;  and  the  3  2  Redf .  on  Wills,  853  (§  74,  1). 

language  of  Harlan,  J.,  in  Southern 


CH.  VI.] 


ADJUSTMENT. 


511 


entirely  taken,  while  those  of  the  others  are  left  untouched,  he 
manifestly  has,  in  justice,  a  right  to  say  that  the  interests  which 
stand  exactly  in  the  same  position  with  his  own  shall  contribute 
ratably  to  bear  the  common  burden ;  in  other  words,  he  has  an 
equity  for  contribution  as  against  his  co-legatees.^ 

346.  Order  in  which  assets  of  a  decedent  are  applied  to  the 
payment  of  his  debts. 

The  order  in  which  assets  are  liable  to  be  taken  for  the  pay- 
ment of  debts  is  generally  stated  to  be  as  follows:  1.  The  general 
personal  estate,  not  expressly  or  by  imphcation  exempted;  2. 
Any  estate  particularly  devised  simply  for  the  payment  of  debts ; 
3.  Estates  descended;  4.  Property  devised  and  bequeathed  to 
particular  devisees  and  legatees,  but  charged  with  the  payment 
of  debts;  5.  General  pecuniary  legacies  pro  rata;  6.  Specific 
legacies,  and  lands  devised ;  7.  Personalty  and  realty  over  which 
the  person  whose  estate  is  to  be  administered  has  exercised  a 
general  power  of  appointment." 

The  general  personal  estate  is,  in  the  first  instance,  applicable 
to  the  payment  of  debts;  and  it  is  also  the  primary  and  natural 
fund  for  the  payment  of  legacies;  and  if  legacies  or  annuities  are 
given  generally,  they  are  payable  out  of  the  personal  estate 
only.^ 

847.  How  the  g^eneral  personalty  may  be  exonerated. 

The  general  personal  estate  may,  however,  be  exem])tetl  from 


12  Redfield  on  Wills,  853,  854 
(§  74,  2);  In  re  Saunders-Da\ics,  .34 
Ch.  D.  482. 

2  Smith's  Manual  of  Equity,  270, 
271.  See,  also.  Hoover  r.  Hoover,  5 
Pa.  ;i51;  Breden  r.  (Jilliland,  G7  Id. 
;]l;  Hays  v.  Jack.son,  0  Mass.  149; 
Livingston  r.  Newkirk,  ;]  .Johns.  Ch. 
312;  Miller  v.  Harwell,  3  Murph. 
l'.)4;  McLoud  r.  lioberts,  4  Hen.  & 
Munf.  443;  Mar.sh  r.  Marsh,  10  B. 
Mon.  360;  Chase  r.  Lockerman,  11 
Gill  &  .J.  185;  Elliott  v.  Carter,  0 
Gratt.  540;  Clarke  r.  Henshaw,  ;;0 
Ind.  144;  In  re  Bate,  43  Ch.  D.  GOO 
[overruled,  In  re  Roberts  (1002),  2 
Ch.  834];  Snell's  E(i.  221;  Adams's 
Eq.  523  (6th  Am.  cd.),  and  notes; 


Story's  Eq.  §  577;  Perry  on  Trusts, 
§  566;  2Spence's  Eq.  817;  American 
note  to  Duke  of  Ancaster  ;•.  Mayer,  1 
Lead.  Cas.  Eq.  647  (3d  Am.  ed.). 
The  only  exception  to  this  rule  ap- 
pears to  be  South  Carolina,  where  it 
is  held  that  property,  whether  real  or 
personal,  which  has  been  specificall}' 
set  apart  by  the  will  for  the  payment 
of  debts,  must  be  first  applied  to  that 
purpose.  Dunlap  >\  Dunlap,  4  Dess. 
305;  Pinckney  r.  Pinckney,  2  Rich. 
Eq.  2;'.5;  note  to  Duke  of  .\ncaster 
r.  Mayer,  1  Lead.  Cas.  Eq.  648  (3d 
.Vm.  ed.). 

3  Smith's  Manual  of  Equity,  271; 
Am.  note  to  Aldrich  r.  Cooper,  2 
Lead.  Cas.  Eq.  266  (3d  Am.  ed.). 


512  ADJUSTMENT.  [PART  II. 

this  primary  liability,  either  by  express  provision  in  the  will,  or 
by  implication  from  the  circumstances  attending  the  case.*  Al- 
though the  presumption  is  against  intention  to  exonerate  the 
personalty,  yet  where  there  are  express  words  exempting  the 
personalty,  there  can,  of  course,  be  no  question  as  to  its  freedom 
from  liability;  -  and  the  rule  is  the  same,  where  there  is  on  the 
face  of  the  will  a  plain  intention  on  the  part  of  the  testator  to 
exonerate  his  personal  estate.^  In  what  way,  however,  this  in- 
tention can  be  manifested  with  sufficient  clearness,  is,  perhaps, 
a  (luestion  attended  with  more  difficulty.  The  primary  fund 
will  not  be  exonerated  merely  because  another  fund  is  provided, 
for  such  other  fund  is  considered  as  auxiliary  only,  unless  the 
primary  fund  be  expressly  exonerated. "*  The  true  rule  would 
seem  to  be  that  the  personal  estate  will  be  exempted  only  when 
there  appears,  upon  the  whole  testamentary  disposition  taken  to- 
gether, an  intention  on  the  part  of  the  testator,  so  expressed  as 
to  convince  a  judicial  mind  that  it  was  meant  not  merely  to 
charge  the  real  estate,  but  so  to  charge  it  as  to  exempt  the  per- 
sonal estate ;  for  it  is  not  upon  an  intention  to  chai'ge  the  real,  but 
upon  an  expressed  intention  also  to  discharge  the  personal  estate, 
that  the  question  is  to  be  decided.^  Without  entering  minutely 
into  the  subject  it  may  be  stated,  as  a  general  rule,  that  if  the  per- 
sonal estate  as  a  whole,  and  not  as  a  residue,  is  given  the  nature 
of  a  specific  be([uest,  and  another  fund  is  supplied  for  the  pay- 
ment of  the  debts  and  legacies  and  funeral  and  testamentary 
charges;  or  if  the  testator  has,  by  any  declaration  in  his  will, 
shown  an  intention  to  preserve  the  personal  estate  entire  for  any 
given  purpose  whatever,  that  will  be  sufficient  to  exempt  the 
personalty.^ 

1  Note    to    Duke    of    Ancaster    v.  Duke  of  Ancaster  v.  Mayer,  1  Lead. 

Mayer,    I    Lead.   Cas.    Eq.   646   (4th  Cas.    Eq.    640;    and    to    Aldrich    v. 

Enj;.  (•(!.);  CoUis  v.  Robins,  1  De  G.  Cooper,    2    Id.    265    (3d    Am.    ed.). 

&Sm.  LSI;  2  .Jarm.  on  Wills,  564-600.  Originally,  express  words  were  nec- 

-  Young  r.  Young,  26  Beav.  522.  essary  to  exempt  the  personal  estate, 

3  Coventry   c.   Coventry,    2  Dr.   &  and  almost  every  judge  has  lamented 

Sm.  470;  Clery's  .Vppeal,  35  Pa.  54.  that  that  rule  has  not  been  adhered 

*  Barnewell  r.  Cawdor,  3  Mad.  453;  to.     2  Spence's  Eq.  337. 

Watson  V.  Brickwood,  9  Ves.  447;  2  ^2   Spence's  Eq.   .341.      See,  also, 

Spence's  Eq.  824.  Smith's  Manual  of  Equity,  272;  W^ebb 

5  Bootle  r.  Blundcli,  1  Meriv.  2.30;  v.  Jones,  2  Bro.  C.  C.  60;  Dawes  ?\ 

Walker's  Est.,  3  Rawle,  220;  Canfield  Scott,  5  Russ.  32;  Forrest  v.  Prescott, 

V.  Bo.stwick,  21  Conn.   550;  Sims  r.  L.  R.  10  Eq.  545. 
Sims,  10  \.  J.  Eq.  158;  Am.  notes  to 


CH.  VI.] 


ADJUSTMENT. 


513 


348.  Exoneration  by  implication. 

The  personal  estate  ma}'  also  be  exonerated  by  implication, 
and  an  instance  of  such  implied  exoneration  may  be  found  in 
the  case  of  a  mortgage  debt  not  created  by  the  decedent,  and 
which  has  been  held,  therefore,  under  certain  circumstances,  to 
be  payable  not  out  of  the  personalty,  but  out  of  the  mortgaged 
premises.  Thus,  if  a  mortgage  had  been  created  by  an  ances- 
tor, and  the  mortgaged  estate  had  afterwards  descended  upon 
the  heir,  the  personal  estate  of  the  heir  would  not  be  liable  in 
favor  of  any  person  who  should  derive  title  by  descent  under 
him  to  the  mortgaged  premises,  subject  to  the  mortgage.^ 

349.  When  realty  and  personalty  eontribnte  pro  rata. 
Where  the  testator  directs  a  sale  of  his  real  estate,  and  the 

proceeds  of  the  personal  estate  are  thrown  into  one  mass,  which 
he  subjects  to  the  payment  of  debts  and  legacies,  the  real  and 
personal  estate  nuist  contribute,  in  projjortion  to  their  relative 
amounts,  to  the  payment  of  the  debts  and  legacies.-  But  if  real 
and  personal  estate  are  given  together  to  one  person  subject  to 
charges,  but  the  real  estate  is  not  directed  to  be  sold,  the  personal 
estate  remains  primarily  liable. ■'' 

If  the  order  in  which  assets  should  be  applied  to  the  payment 
of  debts  and  legacies  has  been  disturbed,  this  disturbance  may 
(as  has  been  already  stated)  l>e  corrected  by  the  application  of 
the  doctrine  of  marshalling.  Thus,  if  pecuniary  legacies  have 
been  taken  for  the  payment  of  debts,  the  legatees  are  entitled 
to  the  equity  of  marshalling  as  against  real  estate  descended,  or 
as  against  real  estate  devis(xl,  but  charged  with  the  payment  of 
debts.    But  they  have  no  right  to  marshal  as  against  lands  de- 


1  Duke  of  Ancaster  v.  Mayer,  1  Bro. 
C.  C.  454;  Cumberland  v.  Codrington, 

3  Johns.  Ch.  257;  Keyzey's  Case,  9 
S.  &  R.  71;  Garnett  v.  Macon,  6  Call, 
:5()8;  Bank  of  U.  S.  v.  Beverley,  1 
How.  1.34;  1  Lead.  Cas.  Eq.  027  (4th 
Am.  ed.).  If,  however,  for  any 
reason  the  debt  beconaes  the  debt  of 
the  owner  of  the  land,  it  must  be 
paid  out  of  his  personalty.  IIofT's 
Appeal,  24  Pa.  200;  Lennig's  Estate, 
52  Pa.  139;  Thompson  v.  Thompson, 

4  Ohio  St.  333.  See,  also.  Hirst's 
Estate,    35    Leg.    Int.    222    (Hirst's 

33 


Appeal,  92  Pa.  491),  where  the  au- 
thorities are  reviewed. 

2  Roberts  v.  Walker,  1  Russ.  &  M. 
752;  Robinson  v.  The  Governors  of 
London  Hospital,  10  Hare,  19;  Ash- 
worth  V.  Munn,  34  Ch.  D.  391. 

3  Boughton  V.  Boughton,  1  H.  L. 
Cas.  400;  Tench  v.  Cheese,  6  De  G., 
M.  &  G.  453  (but  see  Allan  ?•.  Gott, 
L.  R.  7  Ch.  439);  Williams  on  Ex- 
ecutors, 1712  (7th  Eng.  ed.).  See, 
also,  Elliott  V.  Carter,  9  Gratt.  541; 
Adams  v.  Brackett,  5  Met;  280;  Cox 
V.  Corkendall,  13  N.  J.  Eq.  138. 


514  ADJUSTMENT.  [paRT   II. 

vised,  for  the  interest  of  the  devisee  is  not,  by  law,  Hable  in 
priority  to  that  of  the  legatee. 

350.  Assets  will  not  be  iiiarshalled  in  favor  of  a  charity. 

As  a  general  rule,  assets  will  not  be  marshalled  in  favor  of  a 
charity;  the  reason  being  that  stated  by  Lord  Hardwicke,  in 
Mogg  V.  Hodges,^  namely,  that  a  court  of  equity  is  not  warranted 
in  setting  up  a  rule  of  equity  contrary  to  the  conmion  rules  of  the 
court  merely  to  support  a  bequest  which  is  contrary  to  law.' 

1  2  Ves.  Sr.  53.     See  In  re  Arnold,  2  Xote    to    Aldrich    v.    Cooper,    2 

37  Ch.  D.  637.  Lead.  Cas.  Eq.  103  (4th  Eng.  ed.). 


CH.  VII.] 


LIENS. 


515 


CHAPTER  VII. 


LIENS. 


351.  Distinction    between    liens    at 

common  law  and  in  equity. 

352.  Instances  of  equitable  liens. 

353.  Vendor's     lien     for     purchase- 

money. 

354.  Nature  of  this  lien. 

355.  Waived  by  taking  independent 

security. 


356.  Parties  for  and  against  whom 

the  lien  exists. 

357.  Deposit  of  title  deeds. 

358.  Mortgages  of  personalty. 

359.  Pledges. 

360.  Liens  in  aid   of  equitable  and 

legal  rights. 


351.  Distiuctioii  between  liens  at  common  law  and  in 
equity. 

A  LIEN  at  common  law  has  been  defined  to  be  a  right  in  one 
man  to  retain  that  which  is  in  his  possession,  belonging  to  an- 
other, till  certain  demands  of  him,  the  person  in  possession,  are 
satisfied.^  It  will  be  observed  that  this  lien  is  founded  upon 
the  idea  of  posvsession;  and  conseciuently,  as  a  general  rule,  if 
the  possession  is  abandoned  the  lien  is  lost.  It  attaches  exclu- 
sively to  personal  property.^ 

Besides  the  common-law  liens  there  are  certain  liens,  or  rights 
in  the  nature  of  liens,  which  are  wholly  independent  of  posses- 
sion,^ which  exist  only  in  equity,  and  of  which  equity  alone  can 
take  cognizance.'* 

The  general  nature  of  an  equitable  lien  has  been  described  by 
a  learned  author  in  language  which  has  been  approved  by  the 
Supreme  Court  of  the  United  States,  and  which  may  be  here 
quoted:  "The  doctrine  may  be  stated  in  its  most  general  form 
that  every  express  executory  agreement  in  writing,  whereby  the 
contracting  party  sufficiently  indicates  an  intention  to  make 
some  particular  property,  real  or  personal,  or  fund,  therein  de- 


1  Per  Grose,  J.,  in  Hammonds  v. 
Barclay,  2  East,  235;  2  Spence's  Eq. 
796. 

2  2  Spence's  Eq.  796. 

3  Smith's  Manual  of  Equity,  338. 


*  Gladstone  v.  Birley,  2  Meriv.  403; 
Cotesworth  v.  Stephens,  4  Hare,  193: 
2  Spence's  Eq.  803;  Jarboe  v.  Severin, 
112  Ind.  572. 


516 


LIENS. 


[part  II. 


scribed  or  identified,  a  security  for  a  debt  or  other  obligation,  or 
whereby  the  party  promises  to  convey  or  assign  or  transfer  the 
property  as  security,  creates  an  equitable  lien  upon  the  property 
so  indicated,  which  is  enforceable  against  the  property  in  the 
hands  not  only  of  the  original  contractor,  but  of  his  heirs,  admin- 
istrators, executors,  voluntary  assignees  and  purchasers  or  en- 
cuml^-ancers  with  notice.  Tender  like  circumstances  a  merely 
verl)al  agreement  may  create  a  similar  lien  upon  personal  prop- 
erty." The  author  justly  adds  that  the  doctrine  is  but  an  ap- 
plication of  the  maxim  that  equity  considers  as  done  that  which 
ought  to  l)e  done.^ 

In  modern  times  the  doctrine  of  ecjuitable  liens  has  been  lib- 
erally extend(\l  for  the  ])urpose  of  facilitating  mercantile  trans- 
actions, and  in  order  that  the  intention  of  parties  to  create 
specific  charges  may  be  justly  and  effectually  carried  out.  A 
good  example  of  the  liens  here  referred  to  may  be  found  in  the 
case  of  Walker  v.  Brown,"  just  cited,  and  decided  in  1897.  In 
that  case,  one  T.  E.  Brown  addressed  to  Walker  &  Co.  a  letter 
advising  them  that  a  loan  of  bonds,  to  the  face  value  of  fifteen 
thousand  dollais,  pi'eviously  made  by  him  to  one  Lloyd,  for  the 
use  of  the  hitter's  firm,  was  "with  the  understanding  that  any 
indebtedness  which  they  may  be  owing  you  at  any  time  shall 
be  paid  before  the  return  to  me  of  these  bonds,  or  the  value 
thei-(^of,  and  that  these  bonds  or  the  value  thereof  are  at  the 
risk  of  the  business  of  Lloyd  &  Co.,  so  far  as  any  claim  you 
may  have  against  said  Lloyd  &  Co.  is  concerned."  Upon  the 
fnith  of  this  letter  Walker  &  Co.  made  sales  to  LWd  &  Co., 
and  the  last-named  firm  subsequently  failed.  Shortly  after  the 
letter  was  written,  and  before  the  failure,  Brown  induced  Lloyd 


1  Poinoroy's  Equity  Jurisp.  §  1235; 
Lcupold  V.  Weeks,  0(3  Mtl.  2S(); 
Edwanls  r.  Banstow,  21  R.  I.  5G2; 
Howard   r.  DelKado  &  Co.,  57  C.  C. 


A.     270;     .Vllcnder 


r. 


Evans-Smith 


Drug  Co.,   3  Ind.  T.r.  62<S;  Walker 
V.  Brown,  165  U.  8.  664. 

2  Walker  v.  Brown,  165  U.  S.  664. 
See,  also,  Fourth  Street  Bank  v. 
Yardley.  Id.  6.". 4,  and  Plankinton  r. 
Ilildehrand,  89  Wis.  209.  An  ex- 
press executory  agreement  in  writing 
whereby  the  contracting  partly  suffi- 
ciently indicates  an  intent  to  make 


some  identified  property  security  for 
a  debt  or  other  obligation,  creates  an 
equitable  lien  on  such  property;  and 
in  this  case  an  agreement  by  contes- 
tants to  pay  coun.sel  a  contingent 
fee  if  the  propounding  of  a  will  is 
prevented,  created  a  lien  on  the  dis- 
tributive shares  in  the  estate  to 
which  tho.se  contestants  became  en- 
titled on  a  settlement  of  the  matter 
effected  by  the  successful  services  of 
the  counsel  so  employed.  IngersoU 
V.  Coram,  211  U.  S.  335. 


CH.  VII.] 


LIENS. 


517 


&  Co.  to  return  to  him  the  bonds,  which  he  thereupon  settled 
on  his  wife.  On  a  bill  filed  by  Walker  &  Co.,  it  was  held  that 
the  letter  gave  them  an  equitable  lien  on  the  bonds  which  could 
be  asserted  as  against  Brown's  wife,  who  was  a  mere  volunteer. 

So,  also,  in  Frith  v.  Forbes,  bills  of  exchange  drawn  against 
a  particular  cargo  of  a  ship,  accompanied  by  letters  of  the  con- 
signor to  the  consignee  referring  to  the  bills,  have  been  held  to 
create  a  lien  upon  the  cargo. ^ 

Other  illustrations  of  such  liens  will  be  found  in  the  instances 
given  in  a  former  chapter  of  the  assignments  of  future  cargoes 
by  way  of  security;  the  assignments  in  such  cases  operating 
to  create  liens  which  could  have  had  no  existence  at  law." 

352.  Instances  of  equitaMe  liens. 

Many  other  instances  of  ec^uitable  liens  of  a  more  ancient 
character  exist;  such  are  the  lien  of  a  vendor  for  unpaid 
purchase-money;  of  one  joint  tenant  of  a  lease  for  fines  and 
expenses  of  renewal ;  for  improvements  which  a  person  has  in- 
nocently put  upon  the  land  of  another,  being  encouraged  thereto 
by  the  owner;  ^  by  deposit  of  title  deeds;  of  a  trustee  upon  the 
trust  estate  for  his  expenses;  of  a  solicitor  upon  papers  and 


1  Frith  V.  Forbes,  4  De  G.,  F.  &  J. 
409;  Robey's  Iron  Works  v.  Oilier,  L. 
R.  7  Ch.  695.  The  doctrine  under 
consideration  may  be  regarded  as  the 
outgrowth  of  the  rule  in  Ex  parte 
Waring,  19  Ves.  345;  2  Rose,  182;  2 
CJlyn  &  Jam.  404;  where  cash  and 
bills  which  had  been  deposited  to 
meet  certain  acceptances  were  held  to 
be  specifically  applicable  to  that  pur- 
pose. The  decision  in  that  case  was 
placed  by  Lord  Eldon  on  the  ground 
of  the  double  insolvency  of  the 
drawers  and  acceptors;  but  this 
ground  has  been  considered  in  some 
of  the  modern  cases  as  too  narrow. 
See  Powles  v.  Hargreaves,  3  De  G., 
M.  &  G.  430.  In  others,  however,  it 
seems  to  be  still  recognized  as  the 
true  ground.  Vaughan  r.  Halliday, 
L.  R.  9  Ch.  5G1.  Instances  of  this 
rule  and  of  the  extent  to  which  it  has 
been  carried  in  modern  times,  may  be 


found  in  The  Bank  of  Ireland  ?'. 
Perry,  L.  R.  7  Exch.  14;  Ex  parte 
Alliance  Bank,  L.  R.  4  Ch.  423;  City 
Bank  v.  Luckie,  5  Id.  773;  Ex  parte 
Dewhurst,  8  Id.  965;  In  re  New  Zea- 
land Banking  Co.,  L.  R.  4  Eq.  226; 
Ex  parte  Smart,  L.  R.  8  Ch.  220; 
Laycock  v.  Johnson,  6  Hare,  209; 
.Ranken  v.  Alfaro,  5  Ch.  D.  786;  Bisp- 
ham  on  Contracts  in  Rem.  In  Hop- 
kins i\  Beebe,  26  Pa.  85,  the  Supreme 
Court  of  Pennsylvania  declined,  un- 
der the  circumstances  of  that  case,  to 
say  that  the  holder  of  a  bill  had  any 
right  as  against  merchandise  on 
which  it  was  drawn. 

2  Ante,  §  165. 

3  See  People's  Bank  v.  Loeffert,  184 
Pa.  164,  where  the  lien  was  enforced 
in  favor  of  the  creditors  of  one  who 
had  fraudulently  applied  his  money 
toward  improving  the  property  of  a 
third  person. 


518 


LIENS. 


[part  II. 


funds;  ^  of  a  part  owner  of  a  ship  upon  her  earnings;  and  many 
others.^'  A  few  of  these  will  require  particular  attention;  and 
among  the  first  is  the  lien  of  the  vendor  of  real  estate  for  the  un- 
paid purchase-money. 

358.  Vendor's  liens  for  purchase-money. 

AMiere  a  vendor  delivers  possession  of  an  estate  to  a  pur- 
chaser, without  receiving  the  purchase-money,  equity,  whether 
the  estate  be  conveyed  or  only  contracted  to  be  conveyed,  and 
although  there  was  not  any  special  agreement  for  that  purpose, 
gives  the  vendor  a  lien  upon  the  land  for  the  unpaid  purchase- 
money.^  This  has  been  the  settled  doctrine  of  the  English 
courts  for  many  years,  having  been  established  by  a  number 
of  authorities,  of  which  the  leading  one  is  considered  to  be 
Mackreth  r.  Symmons,  decided  by  Lord  Eldon  in  1808.''  In 
the  United  States  the  decisions  upon  the  subject  have  not  been 
uniform.  In  some  of  the  states  (jf  the  Union  and  in  the  Fed- 
eral courts,  the  doctrine  of  a  vendor's  lien  has  been  adopted; 
in  others  it  has  been  repudiated ;  while  in  still  a  third  class,  the 
English  rule  has  been  abrogated  or  modified  by  statute.  In 
the  hrst  class  are  included  the  states  of  New  York,  New  Jersey, 
Marj'land,  Tennessee,  Mississippi,  Alabama,  Missouri,  Michigan, 
Illinois,  Indiana,  Ohio,  Colorado,  Arkansas,  Kentucky,  Iowa, 
Wisconsin,  Minnesota,  California,  P'lorida,  Texas,  Nebraska, 
and  perhaps  Oregon.^     The  second  class  (where  the  doctrine 


1  See  Francis  v.  Francis,  5  De  G., 
M.  &  G.  108;  Turner  v.  Letts,  7  Id. 
243;  In  rr  Bank  of  Hindustan,  L.  R. 
.3  Ch.  125.  This  right  is  not  affected 
by  the  fact  that  the  client  is  an  ex- 
ecutor or  trustee  and  the  services 
were  rendered  and  money  received 
on  behalf  of  the  estate.  Burleigh  v. 
Palmer,  74  Xeb.  122. 

■•!  See  2  Spence's  Eq.  797,  80.3,  and 
Hauselt  v.  Harrison,  105  U.  S.  401. 

a  2  Sug.  V.  &  P.  671  (375.  Am.  ed.) ; 
Winters  r.  Fain,  47  Ark.  493;  Morgan 
V.  Dalrymple,  GO  N.  J    Eq.  46G. 

*  15  Ves.  329;  1  Lead.  Cas.  Eq.  447 
(4th  Am.  ed.).  See,  also,  the  lan- 
guage of  the  Supreme  Court  of  the 
L^nited  States  in  Refeld  v.  Wood- 
folk,   22  How.   318-327,  and  of  the 


Circuit  Court  of  Appeals  in  Minah 
Consol.  Min.  Co.  v.  Briscoe,  32  C.  C. 
A. 394. 

5  Stafford  v.  Van  Rensselaer,  9 
Cow.  316;  Garson  v.  Green,  1  Johns. 
Ch.  308;  Dubois  v.  Hull,  43  Barb.  26; 
Armstrong  v.  Ross,  20  N.  J.  Eq.  109; 
Craft  V.  Latourette,  62  N.  J.  Eq.  206; 
White  V.  Casanave,  11  Har.  &  J. 
106;  Carrico  v.  Farmers'  Bank,  33 
Md.  235;  Ellis  v.  Temple,  4  Cold.  315; 
Robinson  v.  Owens,  103  Tenn.  91 
(confines  the  doctrine  within  narrow 
limits);  Stewart  ?'.  Ives,  1  Sm.  &  M. 
197;  Harvey  v.  Kelley,  41  Miss.  490; 
Russell  V.  Watt,  Id.  602;  Mims  r. 
Macon,  etc.,  R.  R.  Co.,  3  Kelly,  333; 
Still  V.  Mayor,  etc.,  City  of  ririffin,  27 
(Ja.  502,  Haley  v.  Bennett,  5  Port. 


CH.  VII.] 


LIENS. 


519 


has  been  rejected)  includes  Maine,  Pennsylvania,  Kansas,  North 
Carolina,  South  Carolina,^  Massachusetts,  Delaware,  and  Wash- 
ington ;  ^  while  in  Vermont,  Virginia,  Georgia,  and  West  Vir- 
ginia the  lien  is  abolished  by  statute.^ 

In  New  Hampshire  and  Connecticut  the  question  is  unde- 
cided.^ In  the  Federal  courts  the  lien  is  recognized.-^  It  is  to 
be  noted  that  a  vendor's  lien  is  only  valid  as  a  security  for  an 
unpaid  purchase  price  in  money  or  its  equivalent,  and,  there- 
fore, if  the  consideration  is  the  performance  of  an  act,  the  non- 
])erformance  of  which  gives  rise  to  a  claim  for  unliquidated 
damages,  no  lien  attaches.^ 


452;  Dennis  i;.  Williams,  40  Ala.  633; 
McKnight  v.  Brady,  2  Mo.  89;  Car- 
roll V.  Van  Rensselaer,  Harring.  Ch. 
(Mi3h.)  225;  Scott  v.  Edgar,  159  Ind. 
38;  Cassell  v.  Lowry,  164  Ind.  1 ;  Sears 
V.  Smith,  2  Mich.  243;  Lyon  v.  Clark, 
132  Mich.  521;  Halvorsen  v.  Halvor- 
sen,  120  Wis.  52;  Johnson  v.  McKin- 
non,  45  Fla.  388;  Hodgson  v.  Smith, 
136  la.  515;  McLaurie  i\  Thomas,  39 
111.  291;  Evans  v.  Goodlet,  1  Blackf. 
246;  Tiernan  v.  Beam,  2  Ohio,  383; 
Anketel  v.  Converse,  17  Ohio  St.  11; 
Francis  v.  Wells,  2  Colo.  660;  Salo- 
mon V.  Martin,  17  Colo.  App.  60; 
Shall  1).  Biscoe,  18  Ark.  142;  Waddell 
V.  Carlock,  41  Id.  523;  Burrus  v. 
Roulhac,  2  Bu.sh,  39;  Maupin  i'. 
McCormick,  Id.  206;  Pierson  v. 
David,  1  la.  23;  McDole  v.  Purdy, 
23  Id.  277;  Tobey  v.  McAllister,  9 
Wis.  463;  Daughaday  r.  Paine,  6 
Minn.  443;  Truebody  v.  Jacobson, 
2  Cal.  269;  Burt  v.  Wilson,  28  Id. 
632;  Woods  v.  Bailey,  3  Fla.  41; 
Marks  v.  Baker,  20  Id.  920;  Pease  v. 
Kelly,  3  Oreg.  417;  Gee  v.  McMillan, 
14  Id.  268  (but  see  Kelly  v.  Ruble,  11 
Id.  75);  McAlpine  v.  Burnett,  23  Tex. 
649;  Birdsall  v.  Cropsey,  29  Neb.  672, 
679.  Also  Indian  Territory,  Hamp- 
ton )'.  Mayes,  3  Ind.  Ter.  65. 

1  Philbrook  v.  Delano,  29  Me.  410; 
Irvine  v.  Campbell,  6  Binn.  118; 
Stouffer  V.  Coleman,   1  Yeates,  393; 


Heist  V.  Baker,  49  Pa.  9;  Simpson  ik 
Mundee,  3  Kan.  172;  Brown  r.  Simp- 
son, 4  Id.  76;  Crawley  v.  Timberlake, 

1  Ired.  Eq.  346;  Wynne  v.  Alston,  1 
Dev.  Eq.  163;  Wragg  v.  Comp.  Gen., 

2  Dess.  509. 

2  Ahrend  v.  Odiome,  118  Mass.  261 
(see  opinion  of  Ch.  J.  Gray  in  this 
case  for  an  examination  of  the  origin 
of  this  lien);  Cannon  v.  Hudson,  6 
Houst.  21;  Smith  v.  Allen,  18  Wash. 
1;  and  also  Arizona,  Baker  i'.  Flem- 
ing, 6  Ariz.  418. 

3  In  Virginia,  when  no  conveyance 
of  the  land  has  been  made,  the  case  is 
not  within  the  statute.  Day  t'.  Hale, 
22  Gratt.  163. 

*  Arhn  v.  Brown,  44  N.  H.  102; 
Chapman  v.  Beardsley,  31  Conn.  115. 

5  Bayley  v.  Greenleaf,  7  Wheat.  46; 
Bush  V.  Marshall,  6  How.  284;  Chil- 
ton V.  Lyons,  2  Black.  458;  M'Learn 
V.  M'Lellan,  10  Pet.  640;  Galloway  v. 
Finley,  12  Id.  264;  Minah  Consol. 
Min.  Co.  V.  Briscoe,  32  C.  C.  A.  394. 

8  Hudelson  v.  Wilson,  40  111.  App.  29. 

The  doctrine  of  vendor's  lien  for 
unpaid  purchase-money  is  as  ap- 
plicable to  a  sale  of  personal  estate — 
such  as  a  reversionary  interest  in  a 
trust  fund — as  to  a  sale  of  real  estate; 
and  accordingly  an  unpaid  vendor 
of  personal  estate  is  entitled  to  all 
such  remedies  for  enforcing  payment 
of  his  purchase-money  and  interest 


520 


LIENS. 


[part  II. 


354.  Nature  of  this  lien. 

As  to  the  exact  nature  of  the  vendor's  Hen  the  expressions 
of  text-writers  and  judges  have  not  been  altogether  uniform. 
By  one  great  writer  the  hen  is  classed  under  the  head  of  implied 
trusts;  ^  while,  on  the  other  hand,  a  different  view  is  taken  in 
the  American  note  to  Mackreth  v.  Synnnons ; '  and  this  latter 
opinion  seems  to  be  justified  by  the  language  of  Mr.  Justice  Storj' 
in  Oilman  v.  Brown,''*  and  by  the  text  of  a  treatise  of  unsur- 
passed authority.'*  It  would  seem  to  be  plain  that  this  lien  is 
not  a  trust  in  the  sense  of  giving  the  vendor  an  equitable  title  ; 
but  that  what  he  has  is  a  charge  or  right  which  has  its  inception 
only  on  bill  filed. ^ 


355.  Waived  by  taking  independent  security. 

The  lien  of  a  vendor  for  unpaid  purchase-money  does  not 
arise,  or  rather  is  considered  as  waived,  if  a  distinct  and  in- 
dependent security  for  the  purchase-money  is  taken.  The  plain- 
est case,  perhaps,  is  where  a  mortgage  is  taken  on  another  es- 
tate, the  obvious  intention  of  burdening  one  estate  being  that 
the  other  shall  remain  free  and  unencumbered.^  Any  other 
independent  security,  as,  for  example,  a  pledge  of  stock,  a  mort- 
gage on  the  land  vsold,  or  the  like,  would  have  the  same  effect.^ 


as  he  would  have  been  entitled  to 
under  an  express  mortgage  or  charge. 
Stucley  V.  Kekewich  [1906],  1  Ch.  67. 

1  Story's  Eq.  §  1219.  See,  also, 
Snell's  Principles  of  Eq.  105;  note  to 
2  Sug.  V.  &  P.  376  (8th  Am.  ed.). 
See,  also,  Ringgold  v.  Bryan,  3  Md. 
Ch.  488;  Moreton  v.  Harrison,  1 
Bland,  491;  Iglehart  v.  Armigcr,  Id. 
516,  524,  525;  Miller  v.  Albright,  60 
Ohio,  48. 

2-1  Lead.  Cas.  Eq.  373. 

3  1  Mason,  191.  "It  (the  lien)  is 
not  therefore  an  equitable  estate  in 
the  land  itself,  although  that  ap- 
pellation is  loosely  applied  to  it." 
See  4  Wheat.  292,  note. 

4  Sug.  V.  &  P.  379  (8th  Am.  ed.). 

5  See  1  Lead.  Cas.  Eq.  366  (Am. 
note);  Robinson  ?'.  Appleton,  124 
111.  276;  Robin.son  ?'.  Owens,  103 
Tenn.  91.  .\nd  it  may  be  enforced 
though  a  judgment  on  the  debt   se- 


cured is  barred  at  law.     Paxton  v. 
Rich,  85  Va.  378. 

6  By  the  Master  of  the  Rolls  in 
Nairn  v.  Prowse,  6  Ves.  752,  760. 
See,  also,  Earl  of  Jersey  v.  Briton 
Ferry  Floating  Dock  Co.,  L.  R.  7  Eq. 
409.  See,  however.  Boos  r.  Ewing, 
17  Ohio,  500;  Anketel  v.  Converse, 
17  Ohio  St.  11. 

7  Nairn  v.  Prowse,  6  Ves.  752;  Rich- 
ardson V.  Ridgely,  8  Gill  &  J.  87; 
White  V.  Dougherty,  1  Martin  &  Y. 
309;  Young  i-.  Wood,  11  B.  Mon.  123; 
Mattix  V.  Weand,  19  Ind.  151 ;  Harris 
V.  Harlan,  14  Id.  439;  Shelby  v.  Per- 
rin,  18  Tex.  515;  Camden  v.  Vail,  23 
Cal.  633;  Hadley  v.  Pickett,  25  Ind. 
450;  Mims  v.  Macon,  etc.,  R.  R.  Co., 
3  Kelly,  333;  Little  v.  Brown,  2  Leigh, 
353;  Cresap  v.  Manor,  63  Tex.  485; 
Brown  ?-.  Oilman,  4  Wheat.  291;  Fish 
r.  Howland,  1  Paige  Ch.  .30;  Phillips 
r.  Saunderson,  1  Sm.  &  M.  Ch.  462; 


CH.  VII.] 


LIENS. 


521 


But  the  taking  of  such  independent  security,  although  evidence 
of  a  waiver,  is  not  conclusive  evidence.^ 

But  a  mere  personal  security,  as,  for  example,  a  bond,  or  a 
bill,  or  a  promissory  note,  will  not  of  itself  operate  as  a  waiver 
of  the  lien.-  And  the  recital  in  a  note  taken  foj  the  unpaid 
purchase-money  that  the  maker  waives  his  right  of  exemption 
as  to  personal  property,  does  not  raise  a  presumption  that 
there  was  thereby  a  waiver  of  the  vendor's  Hen.-''  Where,  how- 
ever, the  bill  or  note  is  taken  as  payment  of  the  consideration- 
money,  in  other  words,  where  the  security  was  in  fact  the 
thing  bargained  for,  the  lien  is  gone."*  And  where  the  vendor 
takes  a  negotiable  note  drawn  by  a  third  person  and  endorsed 
by  the  purchaser,  or  drawn  by  the  purchaser  and  endorsed  by 
a  third  person,  the  presumption  of  the  lien  is  thereby  repelled.^ 

Where  the  conveyance  is  made  in  consideration  of  the  cove- 
nants entered  into  by  the  same  deed  for  the  payment  of  the 
price,  there  is  no  room  for  any  implied  security,  and  hence  no 
vendor's  lien  will  arise.^  Nor  whenever  any  consideration  other 
than  the  purchase  of  lands  enters  into  the  debt,  and  no  data 


Mitchell  V.  Shaneberg,  149  111.  420; 
Winn  V.  The  Lippincott  Co.,  125  Mo. 
528;  McKeown  v.  Collins,  38  Fla.  276. 
See  Boise  v.  Benham,  127  N.  Y.  620. 
See,  however,  Hannah  v.  Davis,  112 
Mo.  599;  Welch  v.  Farmers'  Trust 
Co.,  165  Fed.  Rep.  561. 

1  Manly  v.  Slason,  21  Vt.  271; 
Daughaday  v.  Paine,  6  Minn.  443; 
Mackreth  v.  Symmons,  supra;  2  Sug. 
V.  &  P.  386,  notes;  Jackson  v.  Stan- 
ley, 87  Ala.  270;  Chapman  v.  Chap- 
man, 55  Ark.  542;  Scott  v.  Edgar, 
159  Ind.  38.  See,  also,  in  case  of 
fraud,  Florida  v.  Morrison,  44  Mo. 
App.  529. 

2  Collins  V.  Collins,  31  Beav.  346; 
Hughes  V.  Kearney,  1  Sch.  &  Lef. 
134;  Winter  v.  Lord  Anson,  1  Sim. 
&  Stu.  434;  3  Russ.  488;  In  re  Tay- 
lor et  al.  [1891],  1  Ch.  590  (a  case  of 
a  solicitor's  lien) ;  White  r.  Williams, 
1  Paige  Ch.  502;  Garson  v.  Green,  1 
Johns.  Ch.  308;  Mims  v.  Macon,  etc., 
R.  R.  Co.,  3  Kelly,  333;  Baum  v. 
Grigsby,    21    Cal.    172;   Thornton    r. 


Knox,  6  B.  Mon.  74;  Pinchain  v.  Col- 
lard,  13  Tex.  333;  Manly  v.  Slason, 
21  Vt.  271;  Van  Doren  v.  Todd,  3 
N.  J.  Eq.  397;  Tobey  v.  McAllister, 
9  Wis.  463;  Hoggatt  v.  Wade,  10 
Sm.  &  Marsh.  143;  Davis  v.  Smith, 
88  Ala.  596;  Zwingle  v.  Wilkinson, 
94  Tenn.  246;  note  to  Mackreth  v. 
Symmons,  1  Lead.  Cas.  Eq.  464,  484. 

•t  Eudora  Co.  v.  Barclay,  122  Ala. 
506.  See,  also,  Chastain  v.  Hames, 
124  Id.  618. 

*  Buckland  v.  Pocknell,  13  Sim. 
406;  note  to  1  Lead.  Cas.  Eq.  470 
(4th  .\m.  cd.);  Springfield,  etc.,  R. 
Co.  V.  Stewart,  51  Ark.  2S5. 

6  2  Sug.  V.  &  P.  386,  note  k,  and 
cases  cited;  Richardson  v.  Green,  46 
Ark.  267;  Springf.,  etc.,  R.  Co.  v. 
Stewart,  51  .\rk.  285;  Shrimsher  v. 
Newton,  3  Ind.  Ter.  555. 

6  Clarke  v.  Royle,  3  Sim.  499; 
Earl  of  Jersey  v.  Dock  Co.,  L.  R.  7 
Eq.  409;  2  Sug.  V.  &  P.  381  (8th 
Am.  ed.).  See  Winter  v.  Lord  An- 
son, 1  Sim  &  St.  434;  3  Russ.  488. 


.522 


LIENS. 


[part  II. 


exist  from  which  the  particular  price  agreed  to  be  paid  for  the 

land    '"^^     V\a    /lio+itio-iiicnorl     onrl     riar>OTH-Q  ino/-1    1 


can  be  distinguished  and  ascertained. 


356.  Parties  for  and  against  whom  the  lien  exists. 

As  to  the  parties  for  and  against  whom  the  vendor's  Uen  ex- 
ists, it  may  be  remarked,  in  the  first  j^lace,  that  the  Uen  will 
exist  in  fa\'or  of  a  legatee  (for  example)  whose  legacy  has  been 
taken  to  pay  for  the  purchase  of  an  estate  in  the  hands  of  the 
heir;  in  other  words,  the  ])urchased  estate  and  the  personal  es- 
tate will  be  marshalled.-  The  lien  is  enforceable  against  all 
persons  claiming  under  the  vendee  with  notice,  although  for  a 
valuable  consideration,-''  or  a  volunteer "  but  not  as  against  a 
hotui  fide  purchaser  without  notice.^ 

In  the  American  note  to  Mackreth  v.  Symmons,  it  is  said  that 
the  vendor's  lien  does  not  necessarily  prevail  over  that  of 
judgment-creditors  of  the  vendee,  but  that  "it  depends  upon 
the  relative  equities  and  rights  of  the  disputants,  in  comparison 
with  one  another;"  ^  and  that  "lien-creditors  will  supplant  one 
who,  though  he  had  a  right  in  equity  to  charge  the  land,  through 
his  own  ladies  and  default  failed  to  secure  a  lien."  ^  Mr.  Justice 
Story,  however,  in  his  Commentaries  on  Equity  Jurisprudence, 
says  that  the  lien  of  a  vendor  "will  prevail  against  the  judgment- 
creditor  of  a  vendee  befoix-  an  actual  conveyance  of  the  es- 
tate has  been  made  to  him,  and  as  it  should  seem  also  against 
such  a  judgment-creditor  after  the  conveyance."  *  But  while, 
so  far  as  those  cases  in  which  there  has  been  no  conveyance  are 
concerned,  it  must  be  remembered  that  the  right  of  a  vendor 
is  not  a  mere  lien,  but  an  estate,  and  it  is  difficult  to  see  how 


iSykes  r.  Betts,  87  Ala.  .'kw: 
Peters  i\  Tunell,  43  Minn.  478;  Ciunl 
V.  Gard,  108  Cal.  19. 

2  .\usten  V.  Halsey,  6  Ves.  47.5; 
Cheesebrough  v.  Millard,  1  Johns.  Ch. 
412;  Iglehart  v.  .\rmiger,  1  Bland, 
rA9. 

3  Mackreth  v.  Symmons,  1.)  Ves. 
320;  Meigs  v.  Dimock,  (J  Conn.  4r)8; 
Stafford  ?'.  Van  Rensselaer,  9  Cow. 
316;  Magruder  r.  Peter,  11  Gill  &  J. 
217;  Redford  r.  Gibson,  12  Leigh, 
3.32;  Mounce  r.  Byars.  IG  Ga.  4(19; 
Cox  i'  Fenwick.  ;i  Blbh.  Is.);  Wil- 
hams  V.  Roberts,  5  Ohio,  .>.'>;  1  Lead. 


(\is.  Eq.  49G  (4th  .\m.  ed.);  2  Sug. 
V.  &  P.  303;  Winters  v.  Fain,  47 
Ark.  493. 

<  Chastain  v.  Hames,  124  .\la.  618. 

5  Bayley  v.  Greenleaf,  7  Wheat. 
46;  Schwarz  v.  Stein,  29  Md.  112; 
Blight's  Heirs  v.  Banks,  6  Mon.  192, 
198;  Gooch  r.  Baxter,  2  Duval,  .389; 
Work  r.  Brayton,  5  Ind.  396;  Ma- 
roney  r.  Boyle,  141  N.  Y.  462;  Rob- 
inson r.  Owens,  103  Tenn.  91.  See, 
however,  Day  v.  Hale,  22  Gratt.  16:5. 

«  1  Lead.  Cas.  Eq.  374. 

'U. 

»  Story's  Eq.  Jurisp.  §  1228. 


CH.  VII.] 


LIENS. 


523 


that  legal  estate  can  be  postponed  to  a  mere  charge  against  the 
equitable  estate  of  the  vendee,  yet  when  there  has  been  an 
actual  conveyance  of  the  legal  title,  it  is  equally  difhcult  to 
see  why  the  claims  of  creditors  should  be  postponed  to  a  secret 
encumbrance  which  the  vendor  has  failed  to  render  secure.  It 
has,  therefore,  been  held  in  several  cases  that  the  vendor's  hen 
will  not  prevail  against  judgment-creditors,  or  against  pur- 
chasers under  an  execution  sale ;  ^  and  the  language  of  the 
court  in  Bayley  v.  Greenleaf  -  is  certainly  in  favor  of  the  cred- 
itors.   There  are,  however,  some  decisions  the  other  way.-"* 

An  equitable  mortgage  created  by  the  purchaser,  by  a  deposit 
of  title  deeds  in  favor  of  a  person  who  takes  bona  fide,  and 
without  notice,  will  give  the  latter  a  preferable  equity,  which 
will  overreach  the  vendor's  Hen  on  the  estate  for  any  part  of 
the  purchase-money.'* 

Persons  coming  in  under  the  purchaser  by  act  of  law,  as  as- 
signees of  a  bankrupt,  are  bound  by  the  hen;  although  they 
had  no  notice  of  it.^ 

The  purchaser  of  an  estate  who  has  paid  part  of  the  purchase- 
money,  has  a  lien  on  it  to  that  extent  if  the  vendor  cannot  make 
title.« 


357.  Deposit  of  title  deeds. 

The  next  equitable  lien  which  deserves  consideration  is  that 
which  grows  out  of  a  deposit  of  title  deeds.  The  prima  facie 
effect  of  such  a  deposit  would  seem  to  be  simply  to  create  a  lien 
upon  the  title  deeds  deposited,  in  the  nature  of  a  solicitor's  lien 
upon  papers  in  his  possession:  but  it  has  been  decided  in  iMig- 
land,  and  in  some  of  the  United  States,  that  the  deposit  will 
not  merely  operate  to  create  a  lien  upon  the  papers,  but  will 
enure  as  a  charge  upon  the  land  itself  in  the  nature  of  a  inort- 


1  Johnson  v.  Cawthom,  1  Dev.  & 
Bat.  Eq.  32;  Harper  v.  Williams,  Id 
379;  Crawley  r.  Timberlake,  1  Ired 
Eq.  346;  Roberts  v.  Rose,  2  Humph 
145,  147;  Hall  v.  Jones,  21  Md.  439 

2  7  Wheat.  46. 

3  Aldridge  v.  Dunn,  7  Blatchf .  249 
Parker  v.  Kelly,  10  Sm.  &  M.  184; 
Miller  V.  Albright,  60  Ohio,  48. 

*2  Sug.  V.  &  P.  396  (8th  Am. 
ed.);  Rice  v.  Rice,  2  Drew.  73; 
Schwarz  v.  Stein,  29  Md.  112.     See 


Pierce  v.  Milwaukee  and  St.  Paul  R. 
R.  Co.,  24  Wis.  551,  where  a  mort- 
gage of  subsequently  acquired  real 
estate  was  held  to  be  a  lien  thereon  in 
preference  to  the  lien  of  the  vendor 
of  the  real  estate. 

5  2  Sug.  V.  &  P.  395. 

eWythes  v.  Lee,  3  Drew.  .396; 
Rose  V.  Watson,  10  H.  L.  Cas.  672; 
Aberaman  Iron  Works  v.  Wickens, 
L.  R.  4  Ch.  101;  1  Lead.  Cas.  Eq.  474 
(4th  Am.  ed.);  2  Sug.  V.  &  P.  379. 


524  LIENS.  [part  II. 

gage.  The  first  case  in  England  in  which  this  doctrine  seems 
to  have  been  authoritatively  settled  was  Russel  v.  Russel,  de- 
cided by  Lord  Thurlow  in  1783;^  and  this  decision,  though 
strongly  disapproved,  has,  nevertheless,  been  recognized  by 
many  cases  as  a  binding  authority,^  and  the  doctrine  may, 
therefore,  be  considered  as  well  established  in  spite  of  its  ap- 
parent infringement  upon  the  Statute  of  Frauds.'^ 

While  the  effect  of  a  deposit  of  title  deeds  in  creating  a  lien 
upon  the  estate  may  be  considered  as  definitely  settled,  the 
ascertainment  of  the  exact  manner  in  which  it  operates  is  not 
unattended  with  difficulties.  It  has  been  decided  that  no  agree- 
ment to  execute  a  formal  mortgage  can  be  implied  from  such  a 
deposit;  '^  and  it  has  also  been  held  that  an  agreement  to  give  a 
legal  mortgage,  accompanied  by  a  deposit  of  the  title  deeds  for 
the  purpose  of  preparing  such  a  mortgage,  will  not  constitute  a 
valid  equitable  mortgage.'"'  On  the  other  hand,  a  different  con- 
clusion from  that  reached  in  Norris  v.  Wilkinson  was  arrived  at 
in  several  cases,  and  the  balance  of  authority  is,  perhaps,  in  favor 
of  the  proposition  that  a  delivery  of  deeds  for  the  purpose  of 
preparing  a  legal  mortgage  constitutes  a  valid  ecjuitable  mort- 
gage.*^ Whether  an  e(|uitable  mortgage  can  be  implied  from 
the  simple  fact,  without  more,  of  the  adverse  possession  of  title 
deeds  seems  to  be  doubtful.^ 

The  security  by  deposit  of  title  deeds  has  been  held  to  extend 
to  subsequent  advances  made  upon  the  understanding  that  they 
were  to  be  secured  by  the  deposit.* 

1  1  Bro.  C.  C.  269;  1  Lead.  Cas.  Eq.  Ex    parte    Hooper,    1    Meriv.    7;    Ex 

074  (4th  Am.  ed.).  parte  Pearse,  1  Buck,  525;  Garnham 

^See  Ex  parte  Coming,  9  Ves.  115;  v.  Skipper,   34   W.  R.   135;   Hutzler 

Pryce  v.  Bury,  2  Drew.  42;  Fenwick  v.  Phillips,  26  S.  C.  136. 

7'.  Potts,  8  De  G.,  M.  &  G.  506;  Daw  e  Edge  v.  Worthington,  1  Cox  Ch. 

V.  Terrell,  33  Beav.  218;  1  Lead.  Cas.  211;  Ex  parte  Bruce,   1   Rose,   374; 

Eq.  543.  Hockley    v.    Bantock,    1    Russ.    141; 

3  See  Pryce  v.  Bury,  2  Drew.  42;  Keys   v.   Williams,   3  Y.   &  Col.   55; 

Ferris  i\  Mullins,  2  Sm.  &  Giff.  378;  1  L.  Ca.  Eq.  547;  Bullowa  v.  Orgo,  57 

and  the  remarks  of  Lord  Abinger,  in  N.  J.  Eq.  428. 

Keys  r.  Williams,  3  Y.  &  C.  Ex.  Ca.  7  See  Ex  parte  Coming,  9  Ves.  115; 

55,  61.    See  Dixon  v.  Muckleston,  L.  Chapman  v.  Chapman,  13  Beav.  308; 

R.  8  Ch.  155,  where  the  deeds  were  Smith  r.  Constant,  4  De  G.  &  Sm. 

accompanied  by  a  letter  which  took  213;  Burgess  v.  Moxom,  2  Jur.  (x.  s.) 

the  case  out  of  the  statute.  1059. 

■•  Sporle    r.    Whayman,    20    Beav.  *  Ex  parte  Kensington,  2  V.  &  B. 

607.  79;  James  v.  Rice,  5  De  G.,  M.  &  G. 

5  Norris  v.  Wilkinson,  12  Ves.  192;  461;  1  Lead.  Cas.  Eq.  545. 


CH.  VII.] 


LIENS. 


525 


The  only  remaining  points,  upon  this  subject,  that  seem  to 
require  to  be  stated  are  that  a  hen  may  be  created  by  the  deposit 
of  part  only  of  the  t'tle  deeds ;  ^  that  it  will  be  a  charge  only  upon 
the  interest  of  the  party  making  the  deposit ;  ^  that  the  mort- 
gagee must  be  prompt  in  getting  the  actual  possession  of  the 
deeds;  ^  and  that  the  mortgagee's  appropriate  remedy  is  fore- 
closure."* 

Mortgages  by  deposit  of  title  deeds  have  been  sustained  in 
several  states  of  the  Union,  although  they  have  not  been  of 
frequent  occurrence.''  They  have  been  disapproved  of  in  Ken- 
tucky,^ and  rejected  in  Pennsylvania,^  Ohio,*  Nebraska,**  and 
Georgia.^"  In  Vermont  the  question  is  undecided. ^^  In  quite  a 
number  of  cases  agreements  to  give  a  mortgage  have  been  held 
to  create  a  Hen. ^^ 

358.  Mortgages  of  personalty. 

The  next  class  of  liens  requiring  attention  are  those  which  grow 
out  of  mortgages  and  pledges  of  personalty. 


1  See  Ex  parte  Chippendale,  1  Dea- 
con, 67;  Lacon  v.  Allen,  .3  Drew. 
579;  Roberts  v.  Croft,  2  De  G.  & 
J.  1. 

2  Williams  v.  Medlicot,  6  Price, 
495;  Turner  v.  Letts,  20  Beav.  185. 

3  Farrand  v.  Yorkshire  Banking 
Company,  40  Ch.  D.  182. 

*  Redmayne  v.  Forster,  L.  R.  2  Eq. 
467;  though  see  Tuckley  ik  Thomp- 
son, 1  Johns.  &  H.  126.  See  the  case 
of  Northern  Counties  Ins.  Co.  t'. 
Whipp,  26  Ch.  D.  482,  for  a  state- 
ment of  the  cases  in  which  a  mort- 
gagee by  deposit  of  title  deeds  may 
acquire  priority  over  an  earlier  and 
legal  mortgagee. 

»  Rockwell  r.  Hobby,  2  Sand.  Ch.  9; 
Chase  v.  Peck,  21  N.  Y.  587;  Stod- 
dard r.  Hart,  23  Id.  561;  Griffin  v. 
Griffin,  18  N.  J.  Eq.  104;  Bullowa  v. 
Orgo,  57  Id.  428;  Welsh  r.  IJ.sher, 
2  Hill  Ch.  167;  Williams  v.  Stratton, 
10  S.  &  M.  418;  Mounce  v.  Byars,  16 
Ga.  469;  Robinson  v.  Urquhart,  1 
Beas.  515;  Hackett  v.  Reynolds,  4 
R.  I.  512;  Jarvis  v.  Dutcher,  16  Wis. 


307;  Richards  v.  Leaming,  27  111. 
431;  Keith  v.  Homer,  32  111.  524. 
Question  discussed  in  Hutzler  v. 
Phillips,  26  S.  C.  136,  and  subse- 
quently in  Parker  v.  Bank,  53  Id. 
583,  where  Hustzler  v.  Phillips  was 
criticised . 

8  Vanmeter  v.  McFaddin,  8  B.  Mon. 
435. 

7  Bowers  v.  Oyster,  3  P.  &  W.  239 ; 
Shitz  V.  Dieffenbach,  3  Pa.  233;  Ed- 
wards V.  Trumbull,  50  Id.  509. 

8  Probasco  v.  Johnson,  2  Disney, 
96. 

9  Bloomfield  State  Bank  v.  Miller, 
55  Neb.  243. 

10  Davis  V.  Davis,  88  Ga.  191 
(Stat.). 

11  Bicknell  v.  Bicknell,  31  Vt.  498. 

12  See  Read  v.  Simons,  2  Dess.  552; 
Matter  of  Howe,  1  Paige  Ch.  125; 
Bank  of  Muskingum  ?'.  Carpenter,  7 
Ohio,  21;  Hall  v.  Hall,  50  Conn.  104; 
Bullowa  V.  Orgo,  57  N.  J.  Eq.  428; 
Hamilton  Trust  Co.  v.  Clemes,  163 
N.  Y.  423;  Foster  Lumber  Co.  v. 
Bank,  71  Kan.  158. 


526 


LIENS. 


[part  II. 


It  has  been  stated  in  a  former  chapter  that  mortgages  of 
personalty  resemble,  in  most  respects,  mortgages  of  realty;  so 
far,  at  all  events,  as  the  existence  of  the  equity  of  redemption 
and  of  the  remedy  by  foreclosure  are  concerned.'  There  is,  how- 
ever, this  distinction  between  mortgages  of  real  and  personal 
property,  namely,  that  while  in  the  former  a  foreclosure  suit  is 
necessary  in  order  to  enable  the  mortgagee  to  sell,  in  the  latter 
a  sale  may  be  had  without  the  necessity  of  filing  a  bill.  After 
breach  of  condition,  and  upon  giving  due  notice,  the  mortgagee 
of  personalty  may  sell  the  property  mortgaged,  as  he  could  at 
civil  law;  and  the  title,  if  the  sale  is  made  bona  fide,  will  vest  ab- 
solutely in  the  vendee.^ 

It  may  also  be  observed  that  just  as  absolute  sales  of  per- 
sonal property  to  be  accjuired  in  futuro,  w^hich  would  not  have 
been  considered  good  under  the  strict  rules  of  common  law,  may 
be  sustained  in  ecjuity,  so,  also,  mortgages  of  similar  property 
which  would  not  be  recognized  in  courts  of  law,  may  be  upheld 
in  Courts  of  Chancery.  Thus,  the  case  of  Holroyd  v.  Marshall,^ 
referred  to  in  a  former  chapter,^  was  the  case  of  a  mortgage  {inter 
alia)  of  personalty  which  did  not  come  into  the  possession  of  the 
mortgagor  until  after  the  date  of  the  mortgage.    Such  a  transfer 


^to"b 


would  be  invalid  according  to  the  strict  doctrine  of  the  common 
law,  but  is  now  thoroughly  recognized  in  courts  of  equity;  and 
mortgages  or  charges  in  the  nature  of  mortgages,  upon  personal 
property  which  is  not  already  in,  but  is  to  come  into,  the  posses- 
sion of  the  mortgagor,  are  of  not  unfrequent  occurrence  in 
modern  times,  and  are  constantly  upheld.^  It  is  true,  that  ac- 
cording to  the  rule  established  in  Twyne's  Case,^  transfers  of 


1  Ante,  Part  I.,  Chap.  VII.,  §  161, 
note. 

2  Tucker  v.  Wilson,  1  P.  Wms. 
261 ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch. 
100;  Parker  r.  Brancker,  22  Pick. 
46;  I)c  Lisle  r.  Priestman,  1  P.  A. 
Browne,  176;  Doane  v.  Russell,  3 
Gray,  382;  Story's  Eq.  Jurisp.  §  1031. 

3  io  H.  L.  Cas.  209. 
*  Ante,  §  165. 

5  See  ante,  §  165,  and  cases  cited 
in  the  notes;  to  which  may  be  added 
Groton  Manufacturing  Co.  v.  Gardi- 
ner, 11  R.  I.  626.  The  basis  upon 
which  a  lien,  in  such  cases,  is  rested, 


is  that  a  party  can  agree  to  give 
a  lien  upon  property  as  soon  as  he 
gets  it,  and  equity  will  enforce  the 
agreement,  and  establish  the  lien 
(National  Bank  of  Deposit  v.  Rogers, 
166  N.  Y.  380);  and  that  equity  will 
carry  out  an  intent  to  give  a  lien  by 
treating  that  as  done  which  ought  to 
be  done;  Id.  Contra:  Deeley  v. 
D wight,  132  N.  Y.  59;  Rochester 
Distilling  Co.  v.  Rasey,  142  Id.  570, 
and  Steele  v.  Ashenfelter,  40  Neb 
770. 

5  1  Sm.  Lead.  Cas.  33. 


CH.  VII.] 


LIENS. 


527 


personal  property,  unaccompanied  by  the  delivery  of  possession, 
are  to  be  considered  fraudulent  and  void  as  against  the  creditors 
of  the  assignor;  but  even  under  the  rule  thus  laid  down  it  has 
been  held  that  an  exception  exists  in  favor  of  articles  which, 
at  the  time  of  the  sale,  are  not  susceptible  of  actual  delivery,  as, 
for  example,  merchandise  at  sea,  or  in  the  hands  of  a  third  per- 
son.^ Therefore,  it  is  no  objection  to  a  mortgage  of  property  to 
be  acquired  infuturo  that  it  is  not  delivered  at  once  and  is,  there- 
fore, liable  to  the  rule  in  Twyne's  Case,  for  the  obvious  reason 
that  it  falls  entirely  outside  of  the  doctrine  there  enunciated. 
Indeed,  the  tendency  in  equity  is  not  to  regard  the  delivery  of 
possession  of  personal  property  as  always  essential  to  a  valid 
mortgage  of  the  same ;  ^  and  hence,  mortgages  of  certain  kinds 
of  personal  property,  as,  for  example,  of  the  rolling  stock  of  a 
railroad,  are  of  frequent  occurrence.  Such  mortgages  are,  in 
many  states,  allowed  and  regulated  by  statute ;  but  the  same  end 
is  also  attained  through  the  modern  equitable  doctrines  in  regard 
to  mortgages  of  personal  property .'"' 

359.  Pledges. 

Between  a  mortgage  of  personal  property  and  a  pledge  thereof, 
there  are  one  or  two  points  of  difference  of  considerable  impor- 
tance. ''A  mortgage,"  it  was  said  in  Jones  i".  Smith,"*  "is  a 
pledge  and  more,  for  it  is  an  absolute  pledge  to  become  an  abso- 
lute interest  if  not  redeemed  at  a  certain  time." 

A  pledge,  therefore,  differs,  on  the  one  hand,  from  a  lien, 
which  confers  no  right  to  sell,  but  only  a  right  to  retain  until 
the  debt  in  respect  of  which  the  lien  was  created  has  been  satis- 
fied; ^  and,  on  the  other  hand,  from  a  mortgage,  which  conveys 
the  entire  property  of  the  thing  mortgaged  to  the  mortgagee 


1  Notes  to  Twyne's  Case,  1  Sm. 
Lead.  Cas.  33. 

2Walcott  V.  Keith,  2  Forst.  196, 
and  Whittle  v.  Skinner,  23  Vt.  531. 

3  See  Philadelphia,  etc.,  R.  R.  Co. 
V.  Woelpper,  64  Pa.  372;  Ladley  v. 
Creighton,  70  Id.  494;  Morrill  v. 
Noyes,  56  Me.  465;  2  Redfield  on 
Railways,  501,  508;  Jones  on  Mort- 
gages, §§  153,  154,  172;  ante,  §  165. 
In  England  liens  are  frequently 
created  by  debentures  upon  the  "  un- 
dertaking" of  a  company,  by  which 


the  debenture  holder  acquires  a 
charge  upon  all  the  property  of  the 
company,  past  and  future,  which  he 
can  enforce  by  fihng  a  bill,  and  which 
will  entitle  him  to  priority  if  the 
company  is  wound  up.  See  In  re 
Panama,  etc..  Royal  Mail  Company, 
L.  R.  5  Ch.  318. 

*  2  Ves.  Jr.  372. 

5  Thames  Iron  Works  Co.  i'.  The 
Patent  Derrick  Co.,  1  Johns.  &  H. 
93;  In  re  Rallason,  34  Ch.  D.  495; 
Vanstone  v.  Goodwin,  42  Mo.  App.  39. 


528 


LIENS. 


[part  II. 


ronditionall^y,  so  that  when  the  condition  is  broken  the  property 
remains  al)8okitely  in  the  mortgagee,  whereas  a  pledge  never 
conveys  the  general  property  to  the  pledgee,  but  only  a  special 
property  in  the  thing  pledged.^ 

According  to  the  modern  authorities,  the  remedy  of  the 
pledgee  is  twofold;  he  may  either  file  a  bill  in  chancery  in  the 
nature  of  a  foreclosure  bill,  and  proceed  to  a  judicial  sale;  or, 
he  may  sell  without  judicial  process  upon  giving  reasonable 
notice  to  the  pk^lgor  to  redeem,  and  of  the  intended  sale.^  It 
had,  in  former  times,  been  the  rule  of  common  law,  that  in  the 
absence  of  an  express  power  of  sale,-'  the  pledgee  was  obliged 
to  have  recourse  to  the  process  of  law  to  call  upon  the  pledgor  to 
redeem ;  and  that  the  right  of  redemption  could  not  be  destroyed 
by  anything  short  of  a  judicial  sale;  ^  but  the  mle  now  appears 
to  be  settled  m  favor  of  the  right  of  the  pledgee  to  sell  upon  no- 
tice, without  resorting  to  a  foreclosure  bill.  The  right  to  sell  upon 
notice,  however,  is  one  in  the  exercise  of  which  a  great  deal  of 
care  is  required ;  and  the  pledgee  may  be  held  responsible  if  he 
does  not  strictly  follow  all  the  requirements  of  the  law  by  which 
this  right  is  fenced  in.-^  The  safer  course  in  all  cases  would,  there- 
fore, be  to  file  a  bill,  and  obtain  an  order  for  a  judicial  sale. 

Cases  moreover  may  arise  in  which  some  other  relief  than 
an  order  of  sale  may  be  needed.  Thus,  in  a  case  in  Maine,  a  sav- 
ings bank-book  had  been  delivered  by  the  debtor  to  a  third  party 
for  delivery  to  the  creditor  by  way  of  pledge.  The  debtor  having 
dii'd,  the  creditor  filed  a  bill  for  relief.  It  was  held  that  the  case 
was  one  in  which  a  more  complete  remedy  could  be  afforded  in 
ecjuity  than  by  the  exercise  of  the  common-law  right  to  sell  the 
pledge ;  and  the  court  by  its  decree  fixed  a  time  within  which  the 


1  American  note  to  Coggs  )".  Ber- 
nard, 1  iSm.  Lead.  Ca.s.  384. 

-Steams  v.  Marsh,  4  Denio,  227; 
Davis  r.  l-\ink,  39  Pa.  243;  Diller  v. 
Bnibaker.  .")2  Id.  502;  Tucker  v. 
Wilson,  1  P.  Wms.  201;  Lockwood 
V.  Ewer,  9  Mod.  278;  Pigot  v.  Cub- 
ley,  15  C.  B.  (n.  s.)  701,  and  note 
by  the  American  editor;  Worthing- 
ton  V.  Tormey,  34  Md.  182;  Strong  v. 
Nat.  Mech.  Bank  Ass'n,  45  N.  Y. 
718;  Case  v.  .McCabe,  35  Mich.  101; 
note  to  Coggs  v.  Bernard,  1  Sm. 
Lead.  Cas.  384;  Story  on  Bailments, 


§§  308,  310;  2  Kent's  Com.  582; 
White  River  Savings  Bank  v.  Cap- 
ital Bank,  77  Vt.  130. 

3  Moses  V.  Grainger,  106  Tenn.  7. 

••Story  on  Bailments;  2  Kent's 
Com.  vt  snp. 

5  As  to  the  damages  for  a  wrongful 
sale  by  the  pledgee,  see  Johnson  v. 
Stear,  15  C.  B.  (n.  s.)  3.30,  and  note 
by  the  American  editor.  See,  also, 
Donald  v.  Suckling,  L.  R.  1  Q.  B.  585; 
Halliday  v.  Holgate,  L.  R.  3  Exch. 
299;  Fisher  v.  Brown,  104  Mass. 
259. 


CH.  VII.] 


LIEN. 


529 


administratrix  of  the  debtor  should  have  a  right  to  redeem,  in  de- 
fault of  which  the  deposit  should  be  taken  charge  of  by  an  officer 
of  the  court  and  disposed  of  under  the  court's  direction.^ 

It  has  been  held  that  a  court  of  equity  will  entertain  a  bill 
by  the  pledgor  to  compel  a  delivery  of  the  pledge  after  the  debt 
is  paid ;  ^  and  while  it  may  be  doubted  whether  under  ordinary 
circumstances  the  remedy  at  law  might  not  be  adequate,^  yet  it 
is  clear  that  where  the  case  involves  questions  of  account,  and  the 
ascertainment  of  indefinite  charges,  a  bill  in  equity  is  the  proper 
remedy."* 


360.  Liens  in  aid  of  equitable  and  legal  rights. 

Before  leaving  the  subject  of  the  present  chapter  it  may  be 
remarked  that  a  Court  of  Chancery,  in  enforcing  equitable  titles 
or  equitable  rights,  not  unfrequently  makes  use  of  the  doctrine 
of  liens  in  order  to  render  the  relief  afforded  more  effective.  To 
give  but  a  single  instance.  The  doctrine  of  marshalling  assets 
and  securities  results  sometimes  in  the  substitution  of  one  party 
to  the  lien  to  which  another  had  been  entitled. 

Thus,  in  a  modern  case,  a  firm  in  Ceylon  consigned  coffee  to  a 
firm  in  England,  by  whom  the  coffee,  together  with  certain  se- 
curities of  their  own,  was  pledged  to  their  broker  to  secure  a  debt. 
The  English  firm  having  become  insolvent,  the  broker  sold  the 
coffee  and  enough  of  the  securities  to  satisfy  his  debt ;  and  it  was 
held  that  the  Ceylon  firm  were  entitled  as  against  the  English 
firm  in  liquidation  to  have  the  remaining  securities  in  the  broker's 
hands  marshalled,  and  to  have  a  lien  thereon  for  the  balance  due 
them  in  the  coffee  transaction.^  So,  also,  a  Court  of  Chancery 
will  lend  its  assistance  to  the  enforcement  of  a  legal  lien.  Thus 
in  Schotsmans  v.  Lancashire  Railway  Company,  a  bill  was  filed 
to  protect  a  vendor's  right  of  stoppage  in  transitu;  and  although 
under  the  facts  of  the  case  the  bill  was  dismissed,  yet  the  right 
to  bring  such  a  bill  was  expressly  recognized  by  the  court.^ 


1  Boynton  i'.  Payrow,  67  Me.  587; 
Hall  V.  Cayot,  141  Cal.  13. 

2  Brown  v.  Runals,  14  Wis.  693. 
See,  also,  Ayres  v.  Wattson,  57  Pa. 
360,  a  bill  to  obtain  the  surrender  of 
a  ground-rent  and  the  surrender  and 
satisfaction  of  a  mortgage. 

•*  So  decided  in  Roland  v.  Lancaster 
Bank,  135  Pa.  598. 

34 


*  Conyngham's  Appeal,  57  Pa.  474; 
White  Mts.  R.  R.  v.  Bay  State  Iron 
Co.,  50  N.  H.  57;  Merrill  v.  Hough- 
ton, 51  Id.  61  (a  bill  to  redeem  stock); 
Hagan  v.  Bank,  182  Mo.  319. 

5  Ex  parte  Alston,  L.  R.  4  Ch.  168. 
See,  also,  Bell  v.  Pelt,  51  Ark.  433. 

« Schotsmans  r.  Lancashire  Rail- 
way Co.,  L.  R.  2  Ch.  332;  Leopold  v. 


530 


L,1ENS. 


[part  II. 


On  the  same  principle  it  has  been  held  that  where  a  bank 
discounts  a  note  and  places  the  proceeds  to  the  credit  of  the 
borrower,  it  can,  in  case  of  the  insolvency  of  the  depositor,  re- 
tain the  proceeds  to  meet  the  note.^ 


Silverman,  7  Mon.  266;  Aldine  Manu- 
facturing Co.  V.  Phillips,  118  Mich. 
162.  In  this  last  case  the  court 
said:  "While  equity,  having  ac- 
quired jurisdiction  for  other  pur- 
poses, may  order  sales  of  property 
for  the  satisfaction  of  liens  as  an  in- 
cident to  the  general  relief,  it  has  no 
jurisdiction  to  enforce  a  lien,  whether 
common  or  statutory,  upon  a  bill 
filed  solely  for  that  purpose." 


1  Dougherty  Brothers  v.  Central 
Nat.  Bank,  93  Pa.  233;  Lancaster 
County  Nat.  Bank  v.  Huver,  114  Id. 
216.  It  is  to  be  observed  that  the 
insolvency  occurred,  in  these  cases, 
almost  immediately  after  the  trans- 
action. The  suits  were  at  law;  but 
the  rulings  were  upon  equitable  doc- 
trines. 


PART  III. 

EQUITABLE  REMEDIES. 


CHAPTER  I. 


SPECIFIC    PERFORMANCE. 


361.  General  nature  of  this  equitable 

remedy. 

362.  Inadequacy     of     common-law 

remedies. 

363.  Other  grounds  of  the  superiority 

of  the  remedy  in  equity. 

364.  Contracts   for   the   sale   of   real 

estate. 

365.  May  be  enforced  between  origi- 

nal  parties,    and    those   who 
claim  under  them. 

366.  May  be  enforced  as  to  real  es- 

tate outside  of  the  jurisdic- 
tion. 

367.  Covenants  for  further  assurance. 

368.  Personal  property. 

369.  When  damages  cannot  be  ascer- 

tained . 

370.  Other  contracts. 

371.  Specific    performance    rests    in 

discretion  of  the  court. 

372.  Contract  must  be  founded  on  a 

valuable  consideration. 

373.  Meritorious  considerations. 

374.  Adequacy. 

375.  Performance  in  specie  must  be 

neces.sary. 

376.  Must    be    in    accordance    with 

general  equitable  doctrines. 

377.  Contract  must  be  mutual,  cer- 

tain and  practicable. 

378.  Purchaser    not    compellable    to 

accept  a  doubtful  title. 

379.  Pyrke  v.  W adding} tain. 


380.  Other  rules  as  to  title. 

381.  Parol  variations  of  written  con- 

tracts; Townshend  v.  Stang- 
room. 

382.  Authorities  in  the  United  States. 

383.  Statute  of  Frauds;  exceptions. 

384.  Part  performance. 

385.  What  constitutes  part  perform- 

ance. 

386.  When  the  reduction  of  the  con- 

tract to  writing  is  prevented 
by  fraud. 

387.  When  the  parol  contract  is  ad- 

mitted in  the  answer. 

388.  Specific  performance  with  com- 

pensation for  defects. 

389.  When    the    purchaser   may    be 

compelled  to  take. 

390.  When    he    may   elect    to    take; 

limitations  upon  this  doctrine. 

391.  Time  to  make  out  a  title  bej'ond 

the  day. 

392.  Due  diligence  required. 

393.  Rule  altered  by  express  stipu- 

lations, or  by  presumptions 
growing  out  of  the  nature  of 
the  contract. 

394.  Surrounding    circumstances. 

395.  Compensation;         Sir        Hugh 

Cairns's  Act. 

396.  Doctrine  in  the  United  States. 

397.  Parties  compelled  to  make  good 

their  representations. 

398.  Enforcing   negative    covenants. 

531 


532 


SPECIFIC    PERFORMANCE. 


[part  III. 


361.  General  nature  of  this  equitable  remedy. 

It  is  one  of  the  characteristic  features  of  the  relief  afforded 
by  courts  of  equity,  that  the  effort  always  is  to  put  the  com- 
plainant in  exactly  the  position  he  would  have  occupied  had  it 
not  been  for  the  wrongful  act  of  the  defendant;  and  in  no  head 
of  chancery  jurisdiction  is  this  more  strikingly  exemplified  than 
in  the  Ecjuitable  Remedy  of  Specific  Performance  of  Contracts 
and  Duties. 

This  remedy  is  one  of  the  very  earliest  heads  of  the  extraor- 
dinary jurisdiction  of  the  High  Court  of  Chancery,  as  will  be 
seen  by  reference  to  the  authorities  from  the  Chancery  Calendar, 
cited  in  the  Introduction ;  ^  and  not  only  is  it  one  of  the  most 
ancient,  but  it  has  been  found,  also,  to  be  one  of  the  most  useful 
of  equitable  means  of  redress,  and  has  continued  to  be  uninter- 
ruptedly applied  by  courts  of  general  equity  powers  down  to  the 
present  day.  The  effectiveness,  moreover,  of  the  relief  thus 
afforded  by  the  Court  of  Chancery  in  England,  has  been  still 
further  enhanced,  of  late  years,  by  the  authority  conferred  by 
statute  to  give  compensation  in  addition  to,  or  in  lieu  of  the 
remedy  by  specific  performance,  as  will  be  seen  further  on.' 

362.  Inadequacy  of  common-law  remedies. 

The  reasons  for  the  original  growth  and  subsequent  exercise 
of  this  equitable  remedy  are  obvious.  At  common  law  the  gen- 
eral rule  was  (following  the  civil-law  maxim,  nemo  -preciae  coyi 
ad  factum)  to  give  only  pecuniary  damages  as  redress  for  all  in- 
juries, whether  the  injury  resulted  from  a  refusal  to  fulfil  a  con- 
tract to  deliver  property  of  the  defendant,  or  from  a  wrongfid 
detention  of  property  of  the  plaintiff";  in  other  words,  whether 


1  KjTnburley  v.  Goldsmith,  Chan. 
Cal.  X  :.  Introduction,  §  8,  ante. 
See,  also,  1  Spcnce's  Eq.  645.  "The 
jurisdiction  of  courts  of  equity  to  de- 
cree the  specific  performance  of 
agreements  is  of  very  ancient  date, 
and  rests  on  the  ground  of  the  in- 
adpfjuacy  and  incompleteness  of  the 
remedy  at  law.  Its  exercise  prevents 
the  intolerable  travesty  of  justice  in- 
volved in  permitting  parties  to  refuse 
performance  of  their  contracts  at 
pleasure,  by  electing  to  pay  damages 
for  their  breach."    Per  Fuller,  C.  J., 


in  Union  Pac.  Ry.  Co.  v.  Chicago, 
Rock  Is.  &  Pac.  Ry.  Co.,  163  U.  S. 
600. 

2  Stat.  21  and  22  Vict.  c.  27  (Sir 
Hugh  Cairns's  Act) ;  post,  §  395.  In 
Maryland  (Art.  16,  §  199  of  Code) 
there  is  a  statutory  provision:  "No 
courts  shall  refuse  to  specifically  en- 
force a  contract  on  the  mere  ground 
that  the  party  seeking  its  enforce- 
ment has  an  adequate  remedy  in 
damages,  unless  the  party  resisting 
its  specific  enforcement  shall  show 
to   the   court's  satisfaction   that  he 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


533 


the  action  sounded  in  contract  or  in  tort.^  Land,  indeed,  be- 
longing to  the  plaintiff  could  be  specifically  recovered ;  but  a  con- 
tract to  sell  real  estate  could  not  be  specifically  enforced  by  any 
common-law  action.-  And,  so  far  as  personal  property  was  con- 
cerned, the  rule  stated  above  was  subject  to  but  two  exceptions, 
viz.,  detinue  and  replevin.  But  in  detinue  the  defendant  could 
wage  his  law;  and  the  action  of  replevin  lay  only  for  the  taking 
of  goods  under  a  wrongful  distress,  and  did  not,  in  England,  reach 
other  cases;  although  in  some  of  the  United  States  it  has  been 
extended  so  as  to  embrace  all  kinds  of  wrongful  taking  of  per- 
sonalty, and  in  others  it  has  a  still  more  general  application,  and 
is  used  wherever  one  man  claims  goods  in  the  possession  of  an- 
other, and  seeks  to  recover  them  specifically.^  But  the  common- 
law  remedy  by  damages  was  in  many  instances  manifestly  in- 
adequate; for  while  it  was  truly  said  that  "one  shilling  or  one 
sovereign  was  as  good  as  another,"  "*  and  that  the  money  which  a 
plaintiff  might  recover  as  damages  for  the  non-delivery  of  a  lot 
of  merchandise  would  enable  him  to  purchase  other  articles  of 
exactly  the  same  kind  and  quality,  yet  this  rule  is  plainly  not 
true  in  all  cases.  Thus  a  particular  house  or  a  particular  piece 
of  land  may  have  peculiar  advantages  of  location  and  vicinage 
which  no  other  house  or  piece  of  land  would  or  could  possess, 
and  which  no  money  could,  of  course,  obtain.  So,  also,  there  may 
be  many  personal  chattels  which  have  either  a  pretium  affectionis, 
or  a  value  from  some  other  peculiar  cause,  and  for  the  loss  of 
which,  therefore,  pecuniary  damages  would  be  an  utterly  inade- 
quate compensation  to  the  owner;  and  some  cases,  moreover, 
may  exist  in  which  it  would  be  entirely  impossible  to  estimate 


has  property  from  which  such  dam- 
ages may  be  made,  or  shall  give  bond 
with  approved  security  in  a  pen- 
alty to  be  fixed  by  the  court  to  per- 
form the  contract  or  pay  all  such 
costs  and  damages  as  may,  in  any 
court  of  competent  jurisdiction,  be 
adjudged  against  him  for  breach  or 
non-performance  of  such  contract." 
Neal  V.  Parker,  98  Md.  254. 

1  Fry      on  Specific     Performance, 

11. 

2  The  remedy  by  action  for  a 
breach  of  the  contract  in  such  a  case 
was    extremely    inadequate;    see     1 


Sug.  V.  &  P.  542  (8th  Am.  ed.);  ante, 
Introduction,  §  19. 

33  Black.  Com.  146;  Sharswood's 
note. 

*  PVy  on  Spec.  Perf.  §  11.  Where 
a  complainant  has  an  effectual  rem- 
edy in  his  own  hands,  chancery  will 
not  interfere.  The  court,  for  in- 
stance, will  not  enforce  the  perform- 
ance of  a  condition,  the  non-per- 
formance of  which  would  work  a 
forfeiture,  for  the  grantee  has  fixed 
his  remedy.  Woodruff  v.  Water 
Power  Co.,  10  N.  J.  Eq.  489;  Marble 
Co.  V.  Ripley,  10  Wall.  359. 


534  SPECIFIC    PERFORMANCE,  [PART  III. 

the  damages  for  the  detention  of  property,   by  any   known 
common-law  rules. 

363.  Other  grounds  of  the  superiority  of  the  remedy  in 
equity. 

Other  reasons,  also,  exist  for  invoking  the  jurisdiction  of  a 
chancellor. 

At  conmion  law  one  party  to  a  contract  cannot  complain  of 
a  breach  on  the  part  of  the  other,  unless  he  can  show  his  own 
compliance  wath  the  terms  of  the  agreement  in  every  particular. 
But  in  equity  specific  performance  may  be  decreed,  although 
the  complainant  may  not  be  able  to  fulfil  his  contract  to  the 
letter,  and  this  is  done  by  entering  a  decree  with  compensation 
for  defects.^  So,  too,  time  is  in  equity  not  generally  regarded 
as  of  the  essence  of  a  contract,  and  failure  on  the  part  of  the 
complainant  to  comply  with  his  covenants  on  the  exact  day 
will  not,  necessarily,  disentitle  him  to  relief.^  When  to  the 
above  is  added  the  circumstance  that  equity  will  decree  specific 
performance  of  a  contract  on  the  ground  that  it  has  been  already 
so  far  performed  that  it  would  be  ineciuitable  to  rescind  the  same, 
in  many  cases  in  which  relief  would  be  denied  in  a  court  of  law, 
the  advantages  of  the  equitable  over  the  legal  remedy,  and  the 
reasons  for  its  exercise,  can  be,  perhaps,  properly  appreciated.^ 

364.  Contracts  for  the  sale  of  real  estate. 

From  the  above  general  observations  it  wdll  be  perceived  that 
the  inadequacy  of  pecuniary  damages  and  the  impossibility  of 
estimating  them,  form  the  main  grounds  upon  which  the  equi- 
table remedy  of  specific  performance  may  be  invoked.''  It  will 
be  convenient  to  give  a  few  instances  of  both  of  these  bases  of 
chancery  jurisdiction. 

The  remedy  of  specific  performance  is  most  frequently  ap- 
plied to  contracts  for  the  sale  of  real  estate.  When  a  binding 
agreement  is  entered  into  to  sell  land,  equity  regards  the  vendor 
as  a  trustee  of  the  legal  title  for  the  benefit  of  the  vendee,  while 
the  latter  is  looked  upon  as  a  trustee  of  the  purchase-money  for 
the  benefit  of  the  former.^    Hence  the  purchaser  has  a  right  to 

1  Fry  on  Spec.  Perf.  §4;  infra,  between  his  remedy  at  law  and  his 
§  389.  But  see  Lattin  v.  Hazard,  91  bill  in  equity.  Findlay  v.  Keim,  62 
Cal.  87  (Code).  Pa.  117;  2  Daniel's  Ch.  Prac.  §  4. 

2  Fry  on  Spec.  Perf.,  739.  *  Robinson  v.  Luther,  134  la.  463. 

3  A  chancellor  will  compel  a  party  •''  Richter  i\  Selin,  8  S.  &  R.  425; 
seeking  specific  performance  to  elect  Kerr  v.  Day,  14  Pa.  114;  Brewer  v 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


535 


the  aid  of  the  chancellor  for  the  purpose  of  obtaining  a  convey- 
ance of  the  legal  title  to  the  property  of  which  he  is  the  e(}Liitable 
owner;  while,  as  all  remedies  ought  to  be  mutual,  the  vendor 
can  invoke  the  same  aid  for  the  purpose  of  compelling  the  buyer 
to  accept  a  conveyance,  and  pay  the  purchase-money.'  If  the 
contract  has  been  partly  performed  by  the  vendee's  going  into 
possession  or  paying  the  purchase-money,-  the  equity  of  both 
parties  is,  of  course,  still  stronger.  Hence  it  may  be  said  that 
the  circumstance  that  the  contract  concerns  realty,  gives  the 
party  a  'prima  facie  right  to  come  into  equity ;  ^  for  it  has  been 


Fleming,  51  Id.  113;  Napier  v.  Dar- 
lington, 70  Id.  64;  Finley  v.  Aiken, 
1  Gr.  Cas.  83;  Hallett  v.  Parker,  68 
N.  H.  598;  Malin  v.  Malin,  1  Wend. 
625;  McKechnie  r.  Sterling,  48  Barb. 
3.30;  King  v.  Ruckman,  20  N.  J.  Eq. 
316;  Haughwout  v.  Murphy,  22  Id. 
531,  546;  McCreight  v.  Foster,  L.  R. 
5  Ch.  612;  Shaw  v.  Foster,  L.  R.  5  H. 
L.  321;  Earl  of  Egmont  v.  Smith,  6 
Ch.  Div.  475;  In  re  Thackwray  and 
Young's  Contract,  40  Id.  38.  A  loss 
by  fire  after  the  contract  will  fall  on 
the  purchaser.  Demmy's  Appeal,  43 
Pa.  168;  Dunn  i'.  Yakish,  10  Okl.  388. 
In  Phinizy  v.  Guernsey,  111  Ga.  346, 
it  was  said  that  the  doctrine  of  con- 
version, stated  in  the  text,  has  no  ap- 
plication unless  there  is  an  ability,  as 
well  as  a  willingness,  on  the  part  of 
the  vendor  to  convey,  the  purchaser 
not  being  considered  as  the  owner 
from  the  date  of  the  contract  unless 
the  vendor  is  prepared  to  convey  a 
clear  title  and  is  not  in  default.    See, 


further.   Hill  on  Trustees, 


(4th 


Am.  ed.);  McKechnie  v.  Sterling,  48 
Barb.  330;  1  Sug.  V.  &  P.  270,  and 
note  (8th  Am.  ed.);  American  note  to 
Seton  V.  Slade,  2  Lead.  Cas.  Eq.  Part 
II.  1041;  Sutton  v.  Davis,  143  N.  C. 
474;  Rogers  v.  Mining  Co.,  154  Fed. 
Rep.  612. 

1  Hall  ('.  Smith,  14  Ves.  426.  This 
would  seem  to  be  the  general  rule. 
See  Cathcart  v.  Robinson,  5  Pet.  278; 
Old  Colony  R.  R.  v.  Evans,  6  Gray, 


25;  Springs  v.  Sanders,  Phil.  (N.  C.) 
Eq.  67;  Hopper  v.  Hopper,  16  N.  J. 
Eq,  147;  Schroeppel  v.  Hopper,  40 
Barb.  25;  Story's  Eq.  §  723,  note 
Robinson  v.  Appleton,  124  111.  276 
Abbott  .?<.  Moldestad,  74  Minn.  293 
Pierce  v.  Stewart,  61  Ohio,  422;  Bau- 
mann  i\  Pinckney,  118  N.  Y.  604; 
Maryland  Clay  Co.  v.  Simpers,  96 
Md.  1;  Anderson  v.  Wallace  Co.,  30 
Wash.  147.  But  in  Pennsylvania  it 
has  been  held  that  under  the  statute 
in  that  state  giving  the  courts  power 
to  "afford  specific  relief  where  a  re- 
covery in  damages  would  be  an  in- 
adequate remedy,"  the  vendor  is  not 
entitled  to  the  aid  of  a  court  of  equity, 
where  his  demand  is  simply  to  re- 
cover the  purchase-money,  without 
more;  his  remedy  being  an  action  at 
law.  See  Kauffman's  Appeal,  55  Pa. 
383;  Dech's  Appeal,  57  Id.  467,  473; 
Smaltz's  Appeal,  99  Id.  310.  But 
even  in  Pennsylvania  a  vendor  may 
file  a  bill  where  the  decree  will  not 
be  simply  for  money  payment.  Fin- 
ley  V.  Aiken,  1  Gr.  Cas.  83;  Dalzell  v. 
Crawford,  1  Pars.  Eq.  37. 

2  It  is  not  meant  to  be  here  asserted 
that  payment  of  the  purchase-money 
is  such  a  part  performance  as  will 
take  the  case  out  of  the  Statute  of 
Frauds;  see  infra,  §§  384,  385. 

3  Specific  performance  will  not  be 
decreed  for  a  tenancy  from  year  to 
year.  Clayton  v.  Illingworth,  10 
Hare,  451. 


536 


SPECIFIC  pp:rformance. 


[part  III. 


justly  remarked  that  where  such  a  contract  is  not  objectionable 
legally,  it  is  as  much  a  matter  of  course  for  a  court  of  ec}uity  to 
decree  specific  performance,  as  it  is  for  a  coui't  of  law  to  give 
damages.^  This  right,  however,  is  controlled,  in  particular  in- 
stances, by  other  ecjuities  presently  to  be  noticed. 

The  vendor's  right  to  the  purchase-money  when  the  vendee 
has  been  put  in  possession  before  conveyance,  must  not  be  con- 
founded with  his  lien  for  purchase-money  after  conveyance.  In 
one  case,  the  legal  estate  remains  in  the  vendor;  in  the  other, 
he  has  merely  a  charge  on  it  in  the  vendee's  hands.  This  dis- 
tinction has  been  sometimes  overlooked,  but  is,  nevertheless, 
obviously  important. - 


365.  May  be  enforced  between  original  parties  and  those 
who  claim  under  them. 

Contracts  relating  to  realty  may  be  enforced  not  only  between 
the  original  parties,  but  also  between  any  persons  claiming  under 
them  in  privity  of  estate,  representation,  or  title,  unless  con- 
trolling equities  have  intervened.^  The  personal  representatives 
of  the  deceased  vendor  may  recjuire  a  conveyance  of  the  real 
estate  to  be  made  as  against  the  heir  of  the  vendor ;  and  on  the 
other  hand,  the  heir  of  the  vendee  is  entitled  to  have  the  per- 
sonalty of  the  estate  applied  to  the  purchase  for  his  benefit.'* 

Where  a  contract  has  been  entered  into  for  the  sale  of  prop- 


iPomeroy's  Eq.  §  1302;  Richards 
V.  Crews,  11  Oreg.  501;  Conaway  v. 
Sweeney,  24  W.  Va.  643;  Ballard  v. 
Ballard,  25  Id.  763;  Clark  v.  Gordon, 
35  Id.  735;  Borie  v.  Satterthwaite, 
180  Pa.  542;  Van  Epps  v.  Redfield,  68 
Conn.  46;  Fowler  v.  Sands,  73  Vt. 
236;  Whitted  v.  Fuquay,  127  N.  C. 
68. 

3  See  1  Lead.  Cas.  Eq.  289  et  seq. 
See,  however,  Hall  v.  Jones,  21  Md. 
439. 

3Hoddel  V.  Pugh,  33  Beav.  489; 
Baden  r.  Countess  of  Pembroke,  2 
Vern.  212;  Moore  v.  Crawford,  130 
U.  S.  133;  Newton  v.  Swazey,  8 
N.  H.  9;  Ewins  v.  Gordon,  49  Id. 
444;  Moore  v.  Burrows,  34  Barb.  173; 
Ambrouse  v.  Keller,  22  Gratt.  769; 
Glaze  V.  Drayton,  1  Dess.  109;  Dav- 


enport I'.  Latimer,  53  S.  C.  563; 
Hays  V.  Hall,  4  Port.  374;  McMorris 
V.  Crawford,  15  Ala.  271;  Nesbit  v. 
Moore,  9  B.  Mon.  508;  Spangler 
V.  Danforth,  65  111.  152;  Tiernan 
V.  Roland,  15  Pa.  429;  Laverty  v. 
Moore,  33  N.  Y.  658;  Walker  v.  Kee, 
16  S.  C.  76;  Chambers  v.  Ala.  Iron 
Co.,  67  Ala.  353;  Craver  v.  Spencer, 
40  Fla.  135;  Fry  on  Spec.  Perf.  §  115; 
1  Sug.  V.  &  P.  292,  293  (8th  Am.  ed.). 
*  The  subject  of  the  performance  of 
contracts  of  decedents  concerning 
realty  is  regulated,  in  most  of  the 
United  States,  by  statute.  In  some 
instances,  however,  it  is  necessary, 
notwithstanding  statutory  provi- 
sions, to  resort  to  a  Court  of  Chan- 
cery. See  Wiley's  Ex'r's  Appeal,  84 
Pa.  270. 


CH.  I.] 


SPECIFIC    PEUFOKMAXCE. 


o3/ 


erty,  and  that  property  is  afterwards  aliened  or  assigned,  oi 
contracted  to  be  aliened  or  assigned,  and  the  alienee  or  assignee 
has  notice  of  the  original  contract,  he  is  liable  to  its  performance 
at  the  suit  of  the  purchaser.    If  the  contract  is  a  binding  one,  it 
can  be  enforced  against  any  party  in  whom  is  vested  the  legal 
and  beneficial  interest  in  the  property.^    On  the  other  hand,  if 
the  purchaser  assigns  the  contract,  the  assignee,  upon  jxiyment 
of  the  purchase-money,  can  compel  the  vendor  to  complete  the 
contract  and  convey  the  title  to  him.'    But  it  would  seem  that 
it  is  the  duty  of  the  assignee  of  such  a  contract  to  intervene 
actively,  to  file  a  bill,  and  to  claim  the  benefit  of  the  contract  in 
such  a  way  that  the  court  may  have  an  opportunity  of  dealing 
with  the  rights  of  all  the  parties  interested.    Such  was  the  de- 
cision in  McCreight  v.  Foster,^  where  an  owner  of  leaseholds 
(Foster)  had  contracted  to  sell  them  to  one  Pooley,  who  paid  cer- 
tain instalments,  and  afterwards  assigned  the  benefit  of  the  con- 
tract to  a  company.    The  company  gave  notice  to  Foster;  but 
Foster  subsequently  closed  the  transaction  with  Pooley,  receiv- 
ing from  him  the  balance  of  the  purchase-money,  and  completing 
the  assignment.     Pooley  afterwards  conveyed  to  a  bona  fide  pur- 
chaser without  notice,  and  the  official  liquidators  of  the  com- 
pany then  filed  their  bill  against  Foster,  claiming  that  he  was 
liable  to  make  good  the  loss  occasioned  by  his  completion  of  his 
contract  with  Pooley,  after  he  had  received  notice  from  the  com- 
])any.    It  was  held  by  Lord  Chancellor  Hatherley,  reversing  the 
decision  of  Lord  Ronnlly,  M.R.,  that  Foster  was  not  liable.    The 
ground  of  this  decision  was  that  the  vendor  is  not  to  be  con- 
sidered as  a  complete  trustee  of  the  legal  title  until  the  whole 
jjurchase-money  is  paid;  and  that  in  the  meantime  no  amount 
of  notice  can  deprive  him  of  his  right  to  go  on  and  enforce  his 
bargain  with  the  original  purchaser."* 


'  Daniels  v.  Davison,  16  Ves.  249; 
17  Id.  433;  Saunders  v.  Cramer,  3  Dr. 
&  W.  99;  Barnes  r.  Wood,  L.  R.  8 
Eq.  424;  Fenwick  v.  Bulman,  9  Id. 
165;  Fry  on  Spec.  Perf.  §  135.  See, 
also,  Champion  r.  Brown,  G  Johns. 
Ch.  398;  Muldrow  r.  Muldrow,  2 
Dana,  386;  Hampson  v.  Edelen,  2 
Har.  &  Johns.  64;  Hoagland  v.  La- 
touretto,  2  N.  J.  Eq.  254;  Haughwout 
V.  Murphy,  22  Id.  547;  Langdon  r. 
Woolfolk,   2   B.   Mon.    105;   Borie   v. 


Satterthwaite,  180  Pa.  542;  Brown  v. 
Griswold,     109     Wis.     275;     Fee     r. 
Sharke,  59  N.  J.  Eq.  284;  Fowler  v.  ' 
Fowler,  204  111.  82. 

2  Champion  r.  Brown,  6  Johns.  Ch. 
398;  Story's  Eq.  §  788;  1  Sug.  V.  &  P. 
270  (8th  .\m.  ed.).  See  AUjti  v. 
Allyn,  154  Mass.  570. 

3  L.  R.  5  Ch.  604. 

■*  See  the  argument  of  Sir  Roundell 
Palmer,  L.  R.  5  Ch.  GO'.);  and  the 
opinion   of  the  Chancellor,   Id.   612. 


538 


SPECIFIC    PERFORMANCE. 


[part  III. 


366.  May  be  enforced  as  to  real  estate  outside  of  the  juris- 
diction. 

It  is  no  objection  to  a  bill  for  specific  performance  that  the 
real  estate  lies  out  of  the  jurisdiction  of  the  court.  If  the  par- 
ties are  within  the  jurisdiction,  relief  can  be  given,  for  equity 
always  acts  in  personam.'^  Thus,  in  Massie  v.  Watts,  the  Su- 
preme Court  of  the  Ignited  States  sustained  a  bill  filed  in  the 
Circuit  Court  of  Kentucky,  to  compel  a  conveyance  of  land  sit- 
uated in  Ohio;  while  in  Penn  v.  Lord  Baltimore,  liOrd  Chancellor 
Hardwicke  decreed  the  specific  performance  of  articles  of  agree- 
ment between  the  complainant  and  the  defendant,  touching  the 
boundaries  between  the  colonies  of  Pennsylvania  and  Maryland. ' 
This  jurisdiction,  however,  has  its  limits;  and  a  court  will  not 
compel  a  domestic  corporation  to  go  into  another  state,  where  it 
has  no  corporate  existence,  and  specifically  execute  a  contract 
in  reference  to  property  in  the  latter  jurisdiction.^ 


367.  Covenants  for  furtlier  assurance. 

In  addition  to  decreeing  the  performance  of  a  contract  to 
convey  real  estate,  equity  will  also  lend  its  aid  to  the  specific 
enforcement  of  a  covenant  for  further  assurance;  although,  as 
a  general  rule,  equity  will  not  specifically  enforce  covenants  for 
title  except  in  bills  quia  timet,  such  as  bills  to  remove  a  cloud 
from  a  title,  and  the  like.  The  enforcement  of  a  covenant  for 
further  assurance,  however,  would  seem  to  rest  very  much  upon 
the  same  grounds  as  the  right  to  enforce  the  original  agreement 
to  convey;  and,  therefore,  if  the  purchaser  finds  that  other  con- 
veyances are  necessary  to  render  his  title  perfect,  and  the  defect 
can  be  supplied  by  the  vendor,  he  may  come  into  a  court  of 
equity  and  compel  the  vendor  to  execute  them.'* 


1  Massie  v.  Watts,  6  Cranch,  148; 
Brown  v.  Desmond,  100  Mass.  267; 
Cleveland  v.  Burrill,  25  Barb.  532; 
Burrell  v.  Root,  40  N.  Y.  496;  Mitch- 
ell V.  Bunch,  2  Paige  Ch.  606;  Davis 
r.  Parker,  14  Allen,  94;  Bailey  v.  Ry- 
der, 10  N.  Y.  36.3;  Newton  v.  Bron- 
son,  13  Id.  587;  Great  Falls  Mfg. 
Co.  V.  Worster,  3  Foster,  462;  Ste- 
I)henson  v.  Davis,  56  Me.  73;  Davis 
r.  Headley,  22  X.  J:  Eq.  115;  Penn 
V.  Lord  Baltimore,  1  Yes.  Sr.  444;  2 
Lead    Gas.  Eq.  767;  ante,  §  47;  Fry 


on  Spec.  Perf.  §  60;  1  Sug.  V.  &  P. 
305  (8th  Am.  ed.);  Potter  v.  Hollis- 
ter,  45  N.  J.  Eq.  508;  White  Star 
Mining  Go.  r.  Hultberg,  220  111.  578. 

2  Massie  v.  Watts,  6  Cranch,  14S; 
Penn  v.  Lord  Baltimore,  1  \'es.  Sr. 
444. 

3  Port  Royal  Railroad  Go.  v.  Ham- 
mond, 58  Ga.  523;  ante,  §  47  (note). 

*  See  Pye  r.  Daubuz,  3  Bro.  G.  G. 
595;  Edwards  r.  Appelbee,  2  Id.  652, 
n.;  Smith  /•.  Baker,  1  Y.  &  G.  Gh.  223; 
Gibson    v.    (Joklsmid,    5   De   G.,    M. 


H.  I.] 


SPECIFIC    PERFORMANCE. 


539 


368.  Personal  property. 

In  regard  to  personalty  it  may  be  stated,  as  a  general  rule, 
that  equity  will  not  decree  specific  performance  of  contracts 
relating  to  this  species  of  property,  for  the  reason  that  com- 
pensation by  way  of  damage  is  ordinarily  sufficient ;  although  it 
has  been  held  that  the  mere  circumstance  that  the  bill  seeks 
performance  of  a  contract  which  relates  to  personalty,  does  not 
render  it  demurrable.^  It  is  obvious,  however,  that  sometimes 
the  detention  of  personal  property  cannot  be  adequately  re- 
dressed by  damages,  and  in  such  cases  the  jurisdiction  of  equity 
attaches.^  Accordingly,  contracts  for  the  sale  of  shares  in  a 
particular   company  ^    (though  not  ordinarily,  for  the  sale  of 


&  Ci.  757  (a  case  of  shares  in  a  gas 
company);  Nelson  )•.  Harwood,  3 
Call,  342 ;  Davis  v.  ToUemache,  2  Jur. 
(n.  s.)  1181;  Fields  v.  Squires,  1 
Deady,  366;  Rawle  on  Covenants  for 
Title,  650  et  seq.;  2  Sug.  V.  &  P.  294 
(8th  Am.  ed.). 

1  Carpenter  v.  Mut.  Safety  Ins.  Co., 
4  Sand.  Ch.  408;  Hebert  v.  Mut.  Life 
Ins.  Co.,  8  Sawyer  C.  Ct.  198;  Me- 
chanics' Bank  v.  Seton,  1  Pet.  299; 
Phillips  V.  Berger,  2  Barb.  608;  Mc- 
Garvey  v.  Hall,  23  Cal.  140;  Jones  i\ 
Mackenzie,  58  C.  C.  A.  96  (citing  the 
text);  Hendry  v.  Whidden,  48  Fla. 
268. 

It  may  be  said  that  equity  will  not 
ordinarily  grant  relief  for  the  spe- 
cific delivery  of  chattels,  because  it  is 
generally  considered  that  the  plain- 
tiff has  a  plain,  speedy  and  adequate 
remedy  at  law  for  damages  for  with- 
holding them.  The  interposition  of 
equity  is  not  withheld  except  upon 
this  particular  ground,  as  its  juris- 
diction is  as  ample  to  decree  the  spe- 
cific performance  of  an  agreement 
relative  to  personalty  as  it  is  one 
relative  to  realty.  Livesley  v.  John- 
ston, 45  Oreg.  30. 

The  jurisdiction  of  a  court  of  equity 
to  compel  the  specific  performance 
of  written  contracts  does  not  rest 
upon   any   distinction   between    real 


and  personal  estate,  but  upon  the 
ground  that  damages  at  law  may  not 
in  a  particular  case  afford  a  complete 
remedy,  and  that  whether  or  not 
this  equitable  remedy  will  be  granted 
is  a  matter  of  sound  judicial  discre- 
tion controlled  by  established  prin- 
ciples of  equity  and  exercised  upon 
a  consideration  of  all  the  circum- 
stances of  the  case.  Telegraphone 
Corporation  v.  Telegraphone  Com- 
pany, 103  Maine,  444. 

2  O'Donnell     v.     Chamberlin,      36 
Colo.  395. 

3  Duncuft  V.  Albrecht,  12  Sim.  189; 
Columbine  v.  Chichester,  2  Ph.  27; 
Poole  V.  Middleton,  7  Jur.  (x.  s.) 
1262;  Shaw  v.  Fisher,  2  De  G.  &  Sm. 
11;  W>Tine  v.  Price,  3  Id.  310;  Sher- 
man V.  Herr,  220  Pa.  420;  Eichbaum 
V.  Sample,  213  Id.  216;  Edelman 
V.  Latshaw,  159  Id.  646;  Rumsey  v. 
N.  Y.  and  Pa.  R.  R.  Co.,  203  Id.  579; 
Ferguson  v.  Paschall,  11  Mo.  267; 
Brown  v.  Gilliland,  3  Dess.  539; 
Todd  V.  Taft,  7  Allen,  371;  White  v. 
Schuyler,  1  Abb.  (N.  Y.)  Pr.  ]{. 
(n.  s.)  300;  Treas.  v.  Commercial  Co., 
23  Cal.  3f)0;  Fleishman  v.  Woods, 
135  Id.  256;  Frue  v.  Houghton,  6 
Colo.  318;  Ashe  v.  Johnson,  2  Jon.  Eq. 
149;  Bumgardner  r.  Leavitt,  35 
W.  Va.  194.  A  bill  for  specific  per- 
formance will  be  entertained  when 


540 


SPECIFIC    PERFORMANCE. 


[part  III. 


stock) ; '  for  the  sale  of  a  life  annuity ;  -  or  for  the  delivery  of 
chattels  which  can  be  supplied  by  the  vendor  alone,  as  ship  tim- 
ber of  a  particular  kind  essential  to  complete  a  ship ;  may  all  be 
specifically  enforced.^  The  relief  in  cases  of  personalty  has  also 
been  frequently  applied  where  articles  of  peculiar  value  have 
been  tortiously  withheld.  Such  is  the  case  of  the  famous  Pusey 
Horn,  which  had  from  time  immemorial  gone  along  with  the 
plaintiff's  estate,  and  whereby  the  said  estate  was  held ;  "*  of  the 
altar  piece,  to  which  the  Duke  of  Somerset  had  become  entitled 
as  treasure  trove;  ^  and  in  more  modern  times,  of  the  instruments, 
maps,  and  plans  of  a  surveyor,  withheld  from  him  by  his  clerk;* 
of  title  papers  to  a  foreign  estate;^  or  title  papers,  generally,  in 
some  cases,*  of  a  package  of  bank-notes  impressed  with  a  trust; * 
of  letters  wrongfully  detained,^"  of  the  evidences  of  choses  in  aiiion 
wrongfully  detained  from  the  party  legally  entitled  to  their 
custody ;  ^ '  wampum  belts  which  perpetuated  the  history  of 
Indian  races  ;^^  battle  flags  ;^-'^  and  books  of  historical  value.^'' 


its  object  is  to  obtain  the  delivery 
of  certificates  of  stock  which  confer 
the  legal  title  to  it.  Doloret  i\ 
Rothschild,  1  Sim.  &  Stu.  590;  Pooley 
V.  Budd,  14  Beav.  34;  Dennison  v.  , 
Keasby,  200  Mo.  408. 

1  Ross  V.  Union  Pac.  R.  Co.,  1 
Woohv.  26;  Fallon  v.  Railroad,  1 
Dill.  121;  Cud  v.  Rutter,  1  P.  Wms. 
570;  Foil's  Appeal,  Itl  Pa.  437;  Rigg 
V.  Railway  Co.,  191  Id.  304;  Moulton 
V.  Warren  Mfg.  Co.,  81  Minn.  259; 
1  Lead.  Cas.  Eq.  1096  (4th  Am.  ed.) ; 
Avery  v.  Ryan,  74  Wis.  591.  The 
distinction  (in  England)  is  between 
public  stock  (governments)  and  shares 
in  private  corporations.  In  this 
country  shares  of  companies,  when 
they  can  be  readily  obtained,  and 
when  they  have  a  market  value 
which  can  be  as  certainly  ascertained 
as  that  of  government  securities,  are 
put  upon  the  same  footing  as  public 
stocks.  Ross  V.  U.  P.  R.  Co.,  supra; 
and  Ashe  v.  Johnson,  supra,  note  2 

2  Withy  V.  Cottle,  1  Sim.  &.  Stu. 
174. 

»  Buxton    V.    Lister,    3    Atk.    383; 


Fry  on  Spec.  Perf.  §  33;  Strause  v. 
Berger,  220  Pa.  367;  St.  Regis  Paper 
Co.  V.  S.  C.  Lumber  Co.,  186  N.  Y.  89; 
Ridenbaugh  v.  Thayer,  10  Idaho,  662. 

*  Pusey  V.  Pusey,  1  Vern.  273;  1 
Lead.  Cas.  Eq.  820. 

5  Duke  of  Somerset  v.  Cookson,  3 
P.  Wms.  389;  1  Lead.  Cas.  Eq.  821. 

8  McGowin  v.  Remington,  12  Pa. 
58;  Beasley  v.  Allyn,  15  Phila.  97; 
Falcke  v.  Gray,  4  Drew.  651.  See 
Paris  V.  Greig,  12  Hawaii,  274. 

7  Pattison  v.  Skillman,  34  N.  J.  Eq. 
344. 

8  Kelly  V.  Lehigh  Co.,  98  Va.  405. 
8  Corn  Exch.  Nat.  Bk.  v.  The  Solic- 
itors' Co.,  188  Pa.  330-335. 

10  Dock  V.  Dock,  180  Pa.  14. 

11  Gough  V.  Crane,  3  Md.  Ch.  119; 
Equitable  Trust  Co.  v.  Garis,  190  Pa. 
549;  Schrafft  v.  Wolters,  61  N.  J.  Eq. 
467. 

12  Onandaga  Nation  v.  Thacher,  60 
N-  Y.  Supp.  1027;  aff'd  in  65  N.  Y. 
Supp.  1014. 

13  Orbin  v.  Stevens,  13  Pa.  Sup.  591. 
1'  Battalion     Westerly     Rifles     v. 

Swan,  22  R.  I.  333. 


CH.  I.]  SPECIFIC    PP]RFORMANCE.  541 

Bills  were,  also,  not  unfreqiiently  entertained  in  the  Southern 
states  for  the  specific  delivery  of  domestic  slaves.^ 

It  may  also  be  mentioned,  in  this  connection,  that  where  the 
contract  or  duty  concerning  personal  property  amounts  to  a 
trust,  the  performance  of  such  a  duty  will  be  specifically  en- 
forced, no  matter  what  the  nature  of  the  particular  property 
may  be.^  It  was,  therefore,  held  in  the  case  of  the  Pennsyl- 
vania Company  for  Insurances  on  Lives  and  Granting  Annuities 
V.  The  Franklin  Fire  Insurance  Company,  that  a  corporation 
could  be  compelled  to  issue  stock  to  a  stockholder  whose  shares 
had  been  transferred  by  the  company's  officers  on  a  forged  letter 
of  attorney,  in  place  of  the  shares  of  which  the  transfer  had  been 
thus  negligently  permitted,  or  to  make  good  the  pecuniary  loss 
thus  sustained ;  and  this  on  the  ground  that  the  corporation  oc- 
cupied as  to  its  shareholders  a  fiduciary  relation  which  involved 
the  duty  of  preserving  the  muniments  of  title  to  the  stock.^ 

369.  When  damages  cannot  be  ascertained. 

Courts  of  equity  may  also  enforce  specific  performance  of 
contracts  of  personalty  where  the  damages  in  money  cannot 
be  ascertained.  An  instance  in  this  rule  may  be  found  in  the 
case  of  Adderley  v.  Dixon,  where  the  contract  was  for  the  sale 
of  debts  proved  under  two  commissions  of  bankruptcy,  and 
specific  performance  was  granted  on  the  ground  that  to  compel 
the  plaintiff  to  accept  damages  would  be  in  effect  to  make  him 
sell  the  dividends,  which  were  of  unascertained  value,  at  a  con- 
jectural price.'* 

iSarter  v.  Gordon,  2  Hill  Ch.  121;  181;   Barton  v.  Ry.  Co.,  38  Ch.  D. 

Young  V.  Burton,  1  McMul.  Eq.  255;  458;  Tel.  Co.  v.  Davenport,  97  U.  S. 

Summers  v.  Bean,  13  Gratt.  404;  Fry  369;  St.  Romes  v.  Cotton  Press  Co., 

on  Spec.  Perf.  55  (2d  Am.  ed.),  note;  127  Id.  614;  Penna.  R.  R.  Co.'s  Ap- 

note  to  Cuddee  v.  Rutter,   1   Lead.  peal,  86  Pa.   80;  Pratt  v.  Taunton 

Cas.  Eq.  786.  Copper  Co.,  123  Mass.  110;  Chicago 

■■'  Cowles   ?'.    Whitman,    10    Conn.  Edison  Co.  v.  Fay,  62  111.  App.  55; 

121;  Johnson  V.  Brooks,  93  N.Y.  337;  Cushman    v.    Thayer    Mfg.    Co.,    76 

Goodwin  Co.'s  Appeal,  117  Pa.  536;  N.   Y.   365;   Equitable  Trust   Co.   v. 

Rumsey  v.  N.  Y.  &  Pa.  R.  R.  Co.,  Garis,  44  W.  N.  C.  41-43;  Steinmeyer 

203   Id.   579.     One  who  has  agreed  v.   Seibert,    190   Pa.   475;   Real   Est. 

to  assign  his  insurance  cannot  com-  Tr.  Co.  v.  Bird,  90  Md.  229;  Durfee  v. 

promise  his  claim  with  the  company.  Harper,  22  Mont.  354;  Wilkinson  v. 

Allyn  V.  Allyn,  154  Mass.  570.  Stitt,  175  Mass.  581,  and  Scherck  v. 

3  181   Pa.  40.     See,  also.   Midland  Montgomery,  81  Miss.  426. 
Railway  Co.  o.  Taylor,  8  H.  L.  Cas.  *  Adderley  v.  Dixon,  1  Sim.  &  Stu. 

751;  Johnston  v.  Renton,  L.  R.  9  Eq.  607.     See,  also,  SuUivan  v.  Tuck,   1 


542 


SPECIFIC    PERFORMANCE. 


[part  III. 


370.  Other  contracts. 

Other  contracts  besides  those  of  sale  may  be  decreed  to  be 
specifically  performed.  Thus  performance  has  been  decreed 
in  the  case  of  agreements  to  insure  (and  this,  too,  even  after  a 
loss) ;  ^  to  receive  certain  goods  in  payment  of  a  debt;  ^  to  divide 
chattels  which  formed  the  assets  of  a  firm  among  the  partners;  ^ 
to  compromise  a  suit;^  to  build  ;•'"'  to  plant  trees  furnished  by 
the  plaintiff  under  a  promise  that  the  defendant  would  set  them 
out  on  his  farm,  send  them  to  market,  and  render  an  account  of 
the  profits ;  ^  to  sell  trees ; '  to  pay  in  coin ;  *  to  give  a  promissory 
note  in  place  of  one  which  was  destroyed ; "  to  assign  a  patent ;  ^" 
to  renew  a  license;  ^^  to  give  property  by  last  will  ^^  or  to  settle  a 


Md.  Ch.  59;  Waters  v.  Howard,  Id. 
112;  Finley  v.  Aiken,  1  Gr.  Cas.  83. 

1  Tayloe  r.  Merchants'  Ins.  Co.,  9 
How.  390;  The  Comrcl.  Mut.  Mar.  Ins. 
Co.  V.  The  Un.  Mut.  Ins.  Co.,  19  How. 
318;  Carpenter  v.  Mutual  Safety  Ins. 
Co.,  4  Sandf.  Ch.  408;  Allyn  v.  Allj-n, 
154  Mass.  570;  Lyman  v.  Gedney,  114 
111.  388;  Levy  r".  Abercorris  Co.,  37 
Ch.  D.  260. 

2  Very  v.  Levy,  13  How.  346. 

3  Kirksey  ).'.  Fike,  27  Ala.  383. 

*  Dawson  ?•.  Newsome,  6  Jur. 
(n.  s.)  625;  Chandler  v.  Pomeroy,  143 
U.  S.  318. 

5  Storer  v.  Great  West.  R.  Co.,  2 
Y.  &  C.  48;  Stuyvesant  v.  The  Mayor, 
11  Paige  Ch.  414.  But  see  Kendall  v. 
Frey,  74  Wis.  26,  and  Madison  Ath- 
letic Ass'n  V.  Brittin,  60  N.  J.  Eq.  160. 

8  McKnight  r.  Robbins,  1  Halst. 
Ch.  229;  Hannah  v.  Wahlberg,  128 
Cal.  407. 

7  Stuart  r.  Pennis,  91  Va.  688. 

8  Hall  r.  Hiles,  2  Bush,  532. 

9  McMullen  v.  Vanzant,  71  111.  190. 

10  Binney  v.  Annan,  107  Mass.  94; 
Satterthwait  v.  Marshall,  4  Del.  Ch. 
337;  Runstetter  v.  Atkinson,  4  Mc- 
Arth.  382;  Hepworth  v.  Henshall, 
153  Pa.  592;  Spears  v.  Willis,  151 
N.  Y.  443;  Birkerj-  Mfg.  Co.  r.  Jones, 
71  Conn.  113;  Valley  Iron  Works 
Co.  V.  Goodrick,  103  Wis.  436;  Har- 


rigan  v.  Smith,  57  N.  J.  Eq.  635; 
Gins  V.  CofBnberry,  39  Oreg.  414. 
But  such  a  contract  will  not  be  en- 
forced specifically  when  damages 
will  furnish  an  adequate  compensa- 
tion.   Anderson  ?'.  Olsen,  188  111.  502. 

11  Domestic  Tel.  &  Telph.  Co.  v. 
Metropolitan  Co.,  39  N.  J.  Eq.  160. 

12  Winne  v.  Winne,  166  N.  Y.  263; 
Bruce  v.  Moon,  57  S.  C.  60;  Burdine 
V.  Burdine,  98  Va.  515;  Burns  v. 
Smith,  21  Mont.  251;  McKee  v. 
Higbee,  180  Mo.  263;  Grantham  v. 
Gossett,  182  Mo.  651 ;  Best  v.  Gralapp, 
69  Neb.  811.  Anderson  i'.  Anderson, 
75  Kan.  117;  Winfield  v.  Bowen,  65 
N.  J.  Eq.  636;  Spencer  v.  Spencer,  25 
R.  I.  239.  The  agreement  need  not 
be  in  express  terms  to  make  a  will; 
a  promise  that  the  promisee  shall 
receive  the  property  or  that  it  shall 
be  left  him  at  the  death  of  the 
promisor,  is  sufficient.  Teske  v. 
Dittberner,  70  Neb.  544.  An  ante- 
nuptial contract  entered  into  by  a 
father  with  his  son  and  other  in- 
terested parties  by  which  the  father 
agrees  to  make  no  distinction  be- 
tween his  children  in  the  distribu- 
tion of  his  estate  by  will.  Phalen  v. 
Trust  Co.,  186  N.  Y.  178.  An  in- 
strument by  which  in  consideration 
of  the  surrender  to  them  of  a  child, 
parties  accept  the  duties  of  parents 


:h.  I.] 


SPECIFIC    PERFORMANCE, 


543 


chancery  suit.''  In  short,  an  agreement  will  be  enforced  specifi- 
cally in  a  court  of  equity  where  the  specific  thing  or  act  con- 
tracted for,  and  not  mere  pecuniary  compensation,  is  the  redress 
practically  required;^  and  in  such  cases,  subject  to  the  limita- 
tions which  are  to  be  stated,  it  may  be  said  (as  has  been  already 
observed)  that  it  is  as  much  a  matter  of  course  for  a  Court  of 
Chancery  to  decree  specific  performance  of  a  contract  as  it  is  for 
a  court  of  law  to  give  damages  for  its  breach.^ 


to  the  child  and  agree  that  it  shall 
have  all  the  rights  of  inheritance, 
may  be  specifically  enforced  as  a 
contract  so  as  to  secure  to  the  child 
its  interest  in  the  estate  of  the 
adopting  parties,  although  invalid 
as  an  instrument  of  adoption  be- 
cause not  acknowledged  and  i-e- 
corded  as  required  by  law.  Chehak 
V.  Battles,  133  la.  107.  Contracts 
claimed  to  be  entered  into  with  per- 
sons, to  be  enforced  after  their 
deaths,  to  the  detriment  of  those 
who  would  be  entitled  to  their  es- 
tates, have  become  so  frequent  in 
recent  years  as  to  cause  alarm,  and 
the  courts  have  grown  conservative 
as  to  the  nature  of  the  evidence 
required  to  establish  them;  and  in 
enforcing  them,  when  established, 
by  specific  performance,  such  con- 
tracts are  easily  fabricated  and  hard 
to  disprove,  because  the  sole  con- 
tracting party  on  one  side  is  always 
dead  wlirn  the  question  ari.ses. 
They  ;u-e  the  natural  resort  of  un- 
scrupulous persons  who  wi.sh  to  de- 
spoil the  estates  of  decedents.  They 
threaten  the  security  of  estates  and 
throw  doubt  upon  the  power  of  the 

3  Hopper  r.  Hopper,  16  N.  J.  Eq. 
147;  Rogers  v.  Saunders,  16  Me.  92; 
Chance  r.  Bcall,  '20  Ga.  143;  Johnson 
V.  Rickctt,  5  Cal.  21S;  St.  Paul  Divi- 
sion r.  Brown,  0  Miim.  l.")7;  Love  )•. 
Watkins,  40  Cal.  547;  North  Georgia 
Mining  Co.  r.  Latimer,  51  Ga.  47; 
Gloucester,  etc.,  Co.  v.  Cement  Co., 
154  Mass.  92;  ante,  §  364. 


man  to  do  what  he  wills  with  his 
•  own.  The  savings  of  a  lifetime  may 
be  taken  away  from  his  heirs  by  the 
testimony  of  witnesses  who  speak 
under  the  strongest  bias  and  the 
greatest  temptation,  with  all  the 
dangers  which,  as  experience  sho\\s, 
surround  such  evidence.  The  truth 
may  be  in  them,  but  it  is  against 
sound  policy  to  accept  their  state- 
ments as  true,  under  the  circum- 
stances and  with  the  results  pointc<l 
out.  Such  contracts  should  be  in 
writing,  and  the  writing  should  be 
produced,  or,  if  ever  based  upon 
parol  evidence,  it  should  be  given 
or  corroborated  in  all  substantial 
particulars  by  disinterested  witnes.ses. 
Unless  they  are  established  clearly 
by  satisfactory  proofs,  and  are  equi- 
table, specific  performance  shoukl  not 
be  decreed.  Hamlin  v.  »Stevens,  177 
i\.  Y.  39;  Ide  v.  Brown,  178  N.  Y. 
26;  Jordan  v.  Abney,  97  Tex.  296. 

'  Burton  r.  Landon,  60  Vt.  361. 

-  Ralston  7-.  Ihmsen,  Appellant, 
204  Pa.  592  (quoting  the  text);  and 
Steinmeyer  v.  Siebert,  190  Id.  475. 
It  may  be  added,  here,  that  the  in- 
sertion of  a  penalty  for  non-compli- 

A  contract,  whereby  one  of  the 
parties  thereto  obligates  himself  to 
secure  a  deed  by  a  mortgage,  can- 
not be  specifically  enforced  in  a 
court  of  equity  without  the  alle- 
gations and  proof  of  some  fact  show- 
ing the  case  to  be  one  of  equitable 
cognizance,  or  that  the  remedy  at 
law  is  inadequate;  and   this  is  true 


SPECIP^IC    PERFORMANCE. 


[part  III. 


Courts  of  equity  also  have  jurisdiction  to  enforce  the  specific 
performance  of  awards,  the  jurisdiction  being  assumed  on  the 
ground  that  such  performance  is  an  execution  of  the  agreement 
of  parties  as  fixed  by  the  arbitrators.  Hence  a  chancellor  will 
decree  a  specific  performance  of  an  award,  following  a  proper 
submission,  by  which  the  conveyance  of  real  estate,  or  the  doing 
of  anything  else  in  specie,  is  provided  for,  in  the  same  way  as  of 
a  contract  in  the  same  form  and  effect.  This  is  the  rule  laid  down 
by  the  English  authorities,^  and  it  has  been  followed  by  Amer- 
ican decisions.^ 

371.  Specific  performance  rests  in  discretion  of  the  court. 

While,  as  we  have  just  seen,  equity  will  grant  specific  perform- 
ance in  all  cases  where  the  dispensation  of  exact  justice  would 
seem  to  require  it ;  yet,  on  the  other  hand,  it  has  been  found  neces- 
sary to  circumscribe  the  exercise  of  this  delicate  and  effective 
power  by  certain  limitations.  Specific  performance  is  usually 
said  to  rest  in  the  "discretion"  of  the  chancellor.^    This  discre- 


ance  with  a  contract  as  "  liquidated 
damages  "  will  not  deprive  a  party  of 
his    right    to    specific    performance. 
Hull  V.  Sturdivant,  4G  Me.  34;  Powell 
V.  Dwyer,  149  Mich.  141;  Hooker  r 
Pynchon,    8    Gray,    550;    Moorer    ?' 
Kopmann,  11  Rich.  Eq.  252;  Cham 
berlain  v.  Blue,  6  Blackf.  (Ind.)  491 
Daily    v.    Litchfield,     10    Mich.    38 
Brown  V.  Norcross,  59  N.  J.  Eq.  427; 
Avon,  etc.,   Imp.   Co.  r.  Thompson, 
60  Id.  207;  The  Amanda  G.  M.  Co.  v. 
People's  M.  Co.,  28  Colo.  251;  Ketter- 
ing  V.    Eastlack,    130   la.   498.     See 
Dowling  ('.  Bctjomann,  2  Johns.  &  H. 
511;   Gillis   r.  Hall,   2  Brewst.   (Pa.) 
342;    Barrett    v.    Geisinger,    179    111. 
210;  ante,  §  179. 

1  Blundell  v.  Brettargh,  17  Ves. 
:' !  1 ;  Story's  Eq.  Jur.   §  1458. 

-McNeil  V.  Magee,  5  Mason,  244; 
Jones  r.  Boston  Mill  Corp.,  4  Pick. 
507;  Wood  v.  Shepherd,  2  Pat.  &  H. 


although  the  property  that  was 
claimed  to  he  included  in  the  mort- 
gage   was    both    personal    property 


442;  Whitney  v.  Stone,  23  Cal.  275; 
Story  V.  Norwich  Rd.,  24  Conn.  94; 
Consolidated  Water  Power  Co.  v. 
Nash,  109  Wis.  490;  note  to  Cuddee 
?'.  Rutter,  1  Lead.  Cas.  Eq.  1105  (4th 
Am.  ed.). 

sjoynes  v.  Statham,  3  Atk.  388 
Seymour  r.   Delance.y,   6   Johns.   R 
222;  Blackwilder  v.  Loveless,  21  Ala 
371;  Waters  r.  Howard,  8  Gill,  2(i2 
Auter  ?•.  Miller,  18  la.  405;  Smoot  v 
Rea,  19  Md.  398;  Tobey  v.  Bristol,  3 
Storj',  800;  Pickering  v.  Pickering,  38 
N.  H.  400;  Willard  r.  Tayloe,  8  Wall. 
557;    Hennessy    i\    W^oolworth,    128 
U.  S.  442;  Oil  Creek  Rd.  r.  Atlantic 
&  G.  W.  R.  Co.,  57  Pa.  65;  St.  John 
V.  Benedict,  6  Johns.  Ill;  Sherman  v. 
Wright,    49    N.    Y.    231;    Quinn    v. 
Roath,    37    Conn.    16;    McComas    v. 
Easley,  21  Gratt.  23;  Diamond  State 
Iron  Co.  V.  Todd,  6  Del.  Ch.  163;  Cox 
V.  Middleton,  2   Drew.  209;  Renny- 


and    real    estate.       Brown    ?'. 
Winkle,  141  Ala.  580. 


Van 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


tion,  however,  is  a  judicial  discretion.  It  is  not  a  mere  arbitrary 
will,  but  is  subject  to  certain  definite  and  well-ascertained  rules, 
within  which  its  play  is  confined.^  "I  have  unhmitcd  power," 
said  Sir  George  Jessel,  M.R.,  referring  to  the  analogous  case  ot 
Injunctions,  "to  grant  an  injunction  where  it  would  be  right  or 
just  to  do  so;  and  what  is  right  or  just  must  be  decided,  not  by 
the  caprice  of  the  judge,  but  according  to  sufficient  legal  prin- 
ciples." ^  What  are  the  rules  according  to  which  these  legal  rea- 
sons are  enforced  and  by  which  these  legal  principles  are  ap- 
plied, must  now  be  noticed.^ 

372.  Contract  must  be  founded  on  a  valuable  consideration. 

And,  in  the  first  place,  it  is  a  fundamental  principle  that  the 
extraordinary  remedy  of  specific  performance  will  not  be  ad- 
ministered save  upon  an  application  which  is  based  on  a  valu- 
able consideration.^  The  reason  of  this  is  obvious.  The  general 
ground  for  the  relief  is  the  inadecjuacy  of  damages.  There  can, 
of  course,  be  no  legal  injury  sustained,  and,  therefore,  no  ques- 
tion of  adequacy  or  inadequacy  of  damages  in  cases  where  no 
valuable  consideration  exists,  and  no  pecuniary  loss  has  conse- 
quently been  suffered.  Equity  will  not,  therefore,  interfere  to 
enforce  the  specific  performance  of  a  gift.^  If,  indeed  (it  must 
always  be  remembered),  the  gift  has  assumed  such  a  definite  and 
complete  shape  that  it  is  entitled  to  be  considered  a  trust,  the 
performance  of  this  trust  will  be  enforced.     But  this  is  on  en- 


son  V.  Rozell,  106  Pa.  407;  Reno  ?•. 
Moss,  120  Id.  68;  P'riend  v.  Lamb, 
152  Id.  .535;  Creecy  v.  Grief,  108  Va. 
320;  Pendleton  v.  Dalton,  92  N.  C. 
185;  Miles  v.  Dover  Iron  Co.,  125 
N.  Y.  294;  Sugar  v.  Froehlich,  22!) 
111.  .397;  Jones  v.  Byrne,  149  Fed. 
Rep.  457. 

1  Henderson  v.  Hays,  2  Watts,  148; 
King  r.  Morford,  Sax.  (N.  J.)  274; 
(irifiith  r.  Bank,  6  G.  &  J.  424;  Leigh 
r.  Crump,  1  Ired.  Eq.  299;  South  and 
Xorth  Ala.  R.  R.  Co.  v.  Highland 
Ave.,  etc.,  R.  R.  Co.,  119  Ala.  105; 
Mulligan  v.  Albertz,  103  Wis.  140; 
Marshall  v.  Reach,  227  111.  35;  Bauer 
V.  Lumaghi  Coal  Co.,  209  111.  316; 
Tillery  v.  Land,  136  N.  C.  549. 

2  Beddon  v.  Bcddon,  9  Ch.  D.  89 

35 


3  See  Hissam  r.  Parrish,  41  W.  Va. 
686. 

*  Lear  v.  Chouteau,  23  111.  39; 
Barrett  v.  Geisinger,  179  Id.  240; 
Smith  V.  Phillips,  77  Va.  548;  Roney 
r.  Moss,  74  Ala.  390.  Except  that, 
where  a  voluntary  agreement  has 
been  actually  executed,  equity  will 
enforce  all  rights  growing  out  of  it. 
Wyche  v.  Greene,  16  Ga.  49;  Read  v. 
Long,  4  Yerg.  68;  Swan  Oil  Co.  v. 
Linder,  123  Ga.  550;  Cone  v.  Cone, 
lis  la.  458. 

■''Shepherd  r.  Shepherd,  1  Md.  Ch. 
244;  Holland  v.  Hensley,  4  la.  222; 
Buford  V.  McKee,  1  Dana  (Ky.),  107; 
Studer  v.  Seyer,  67  Ga.  125;  Straj'er 
V.  Dickerson,  205  111.  257;  In  re  Earl 
of  Lucan,  45  Ch.  D.  470. 


546 


SPECIFIC    PERFORMANCE. 


[part  III. 


tirely  different  grounds;  and  the  distinction  between  the  two 
cases  is  clearly  and  thoroughly  established.  If  A.  makes  a  gift 
unaccompanied  by  delivery,  it  is  simjily  an  incomplete  gift,  and 
cannot  be  enforced  against  the  will  of  the  donor.  But  if  A.  con- 
stitutes himself  trustee  of  a  chattel  for  the  benefit  of  B.,  B.  cer- 
tainly can  enforce  the  trust,  and  this  in  opposition  to  A.  In  other 
words,  equity  will  not  make  a  man  a  trustee  for  the  benefit  of  a 
mere  volunteer;  but  if  the  man  constitutes  himself  a  trustee, 
equity  will  enforce  the  trust. ^ 

373.  Meritorious  considerations. 

It  is  essential  to  specific  performance  that  the  consideration 
should  be  valuable  ;  a  merely  good  consideration,  such  as  natural 
love  and  affection,  or  the  performance  of  a  moral  duty,  will  not  be 
suflScient.^ 

Moreover,  it  is  necessary  that  the  consideration  shall  be  actual. 
A  constructive  consideration,  such  as  that  imparted  by  the  seal 
to  a  bond,  will  not  do.^ 

But  it  is  not  necessary  that  the  consideration  should  involve 
a  benefit  moving  to  the  promisor;  it  is  enough  that  there  be  a 
detriment  to  the  promisee.  Therefore,  although  the  transac- 
tion be  in  form  a  mere  promise  to  give,  yet  if  the  donee  be 
thereby  induced  to  expend  money  or  undergo  any  other  detri- 
ment, a  consideration  will  be  introduced  which  may  be  suflEicient 
to  support  a  bill  for  specific  performance.'* 

374.  Adequacy. 

In  some  cases  the  adequacy  of  the  consideration  has  been 
inquired  into.  It  has  been  seen  in  a  former  chapter  that  mere 
inadequacy  of  consideration  is  not  sufficient,  as  a  general  rule, 


1  Ante,  §  67  and  cases  cited.  See, 
in  this  connection,  Halsey  v.  Peters, 
7<t  Va.  60. 

^  Jefferys  v.  .Jefferys,  Cr.  &  P.  138; 
Moore  r.  Crofton,  '.]  .lones  &  Lat.  442; 
Kennedy  r.  Ware,  1  Pa.  445;  Len- 
ni<:;'s  Estate,  182  Id.  498;  Morris  v. 
I>ewis,  33  Ala.  53;  Keffer  r.  Grayson, 
76  Va.  517;  Barrett  r.  Geisinger,  179 
111.  240.  See,  however,  Taj'lor  ?:. 
James,  4  Dess.  5;  Mclntire  v.  Hughes, 
4  Bibh,  186;  Caldwell  r.  William.^ 
1    Bailey   Eq.    175;    Hayes    v.    Ker- 


show,  1  Sandf.  Ch.  261.  See  ante, 
§69. 

a.Lennig's  Estate,  182  Pa.  498; 
Davis  V.  Petty,  147  Mo.  374;  Oil  Co. 
V.  Oil  Co.,  47  W.  Va.  84;  Adams's 
Doct.  Eq.  78.  It  has  been  held  that 
a  promise  is  not  a  valuable  consid- 
eration within  the  purview  of  this 
doctrine.  Winter  ?'.  Goebner,  21 
Colo.  279. 

4  Burris  v.  Landers,  114  Cal.  310; 
Darke  v.  Smith,  14  Utah,  35;  Crim  v. 
England  et  al.,  46  W.  Va.  480;  Bige- 


:h.  I.] 


SPECIFIC    PERFORMANCE. 


547 


to  set  a  transaction  aside ;  ^  and  the  same  rule  is  also  true  in 
cases  where  specific  performance  is  asked  for;  and  reUef  will  not 
usually  be  refused  on  that  ground  alone. ^  But  cases  may  occur 
in  which  the  court  will  exercise  its  discretion,  and  will  refuse  to 
lend  the  aid  of  the  chancellor  to  the  enforcement  in  specie  of  a 
hard  and  unreasonable  bargain.^ 

375.  Performance  in  specie  must  be  necessary. 

In  the  second  place,  a  party  seeking  specific  performance  must 
not  only  be  a  claimant  for  value,  but  he  must  also  show  that 
damages  would  not  afford  an  adequate  compensation.  Hence, 
if  a  money  payment  will  constitute  a  sufficient  redress,  a  chan- 
cellor will  not  interfere."*    This  is  the  reason  for  the  difference  be- 


low V.  Bigelow,  9.3  Me.  4.39;  Schwindt 
V.  Schwindt,  61  Kan.  377. 

1  Ante,  §  219. 

2  Lee  V.  Kirby,  104  Mass.  420; 
Erwin  v.  Parham,  12  How.  197;  Hale 
V.  Wilkin.son,  21  Gratt.  75;  1  Sug.  V. 
&  P.  421  (Sth  Am.  ed.);  Borell  v. 
Dann,  2  Hare,  440;  Rice  v.  Gibbs,  33 
heh.  460;  O'Brien  v.  Boland,  166 
Mass.  481;  Whitted  v.  Fuquay,  127 
N.  C.  68;  Norris  v.  Clark,  72  N.  H.442. 
This  is  particularly  true  of  specula- 
tive purchases,  e.  g.,  of  mines.  Hay- 
wood V.  Cope,  25  Beav.  140;  Brad- 
ley V.  Heyv.ard,  164  Fed.  Rep.  107. 
Montana  Civil  Code,  §4417,  provides 
that  specific  performance  will  not 
be  enforced  against  a  person  unless 
he  has  received  an  "  adequate  "  con- 
sideration for  the  contract.  Trap- 
hagen  v.  Kirk,  30  Mont.  562. 

3  Osgood  V.  Franklin,  2  Johns.  Ch. 
23;  14  Johns.  527;  Howard  v.  Edgell, 
17  Vt.  9;  Shepherd  v.  Bevin,  9  Gill, 
32;  Harrison  v.  Town,  17  Mo.  237; 
Moon  V.  Crowder,  72  Ala.  79;  Powers 
V.  Hale,  5  Foster,  145;  Barrett  v. 
Geisinger,  179  111.  240;  Kelley  v. 
York,  94  Me.  374;  Bear  Track  Min. 
Co.  V.  Clark,  6  Idaho,  196;  Falcke  v. 
Gray,  4  Drew.  651 ;  Rigg  v.  Railway 
Co.,  191  Pa.  304;  Marks  v.  Gates, 
154  Fed.  Rep.  481.     See,  also,  Wil- 


lard  V.  Tayloe,  8  Wall.  557,  stated 
ante,  ^  43.  Some  curious  cases  upon 
the  subject  of  adequacy  of  considera- 
tion have  arisen  in  the  southern 
states,  under  contracts  made  during 
the  war  of  1861-65,  for  the  purchase 
of  real  estate  in  Confederate  cur- 
rency, and  which  have  been  sought 
to  be  enforced  after  the  termination 
of  the  war,  when  the  Confederate 
money  had  become  worthless.  It 
was  held  that  as  the  consideration 
was  adequate  at  the  time  of  the  con- 
tract, the  court  would  decree  spe- 
cific performance.  Hale  v.  Wilkin- 
son, 21  Gratt.  75;  Ambrouse  v. 
Keller,  22  Id.  769;  Talley  v.  Robin- 
son, Id.  888.  These  decisions  were 
properly  based  upon  the  ruling  of  the 
Supreme  Court  of  the  United  States 
in  Thorington  v.  Smith,  8  Wall,  1, 
and  Delmas  v.  Insurance  Co.,  14  Id. 
465,  that  the  notes  of  the  Confed- 
eracy actually  circulating  as  money 
at  the  time  the  contract  was  entered 
into  constitute  a  valid  consideration 
for  such  contract. 

■*  Johnson  v.  Railroad  Co.,  19  Eng. 
L.  and  Eq.  584;  Richmond  v.  Rail- 
road Co.,  33  la.  439;  Phyfe  v.  War- 
dell,  2  Edw.  Ch.  47;  Penna.  Co.  v. 
Delaware,  etc.,  Co.,  31  N.  Y.  91; 
South   &   North  Ala.   R.   R.   Co.   v. 


54S 


SPECIFIC    PERFORMANCE. 


[part  III. 


tween  the  rule  in  regard  to  specific  j)erformance  of  contracts 
relating  to  realty,  and  those  concerning  personalty.^  For  the 
distinction  is  not  founded  upon  the  nature  of  the  property,  but 
.ipon  the  fact  that  in  one  case  damages  in  money  would  not 
'operate  to  give  a  party  the  full  measure  of  redress  which  he 
(Hight  to  have;  whereas  in  most  cases  of  personalty,  to  give  a  man 
a  money  equivalent,  is  as  good  as  giving  him  the  thing  itself.^ 
For  the  same  reason  in  some  exceptional  cases,  specific  perform- 
ance will,  as  we  have  seen,  be  decreed  as  to  personalty;  because 
Ai  such  cases  the  redress  by  damages  would  be  inadequate. 

376.  Must  be  in  accordance  with  general  equitable  doc- 
trines. 

In  the  third  place,  it  must  be  remembered  that  the  jurisdiction 
to  enforce  s])ecific  |)erformance  is  always  exercised  subject  to 
general  equitable  considerations,  and  will  not  be  applied  to  cases 
where  the  complainant  does  not  come  in  with  clean  hands,  or 
where  equities  exist  on  the  other  side  which  would  render  it 
unjust  to  grant  the  relief. •■*  Thus,  if  the  complainant  has  been 
guilty  of  negligence  and  ladies,'^  especially  where  the  contract 


Highland  Av.  and  Belt.  R.  R.  Co., 
119  Ala.  10.3;  Canal  Commrs.  v. 
Sanitary  Dist.,  191  111.  326. 

iSoc  Hall  /•.  Warren,  9  Vcs.  605; 
Harnett  r.  Yielding,  2  Sch.  &  Lef. 
o.5."5;  Finlev  r.  .\ikcn,  1  Gr.  Cas.  83; 
notes  to  Cuddee  v.  Rutter,  1  Lead. 
Cas.  Eq.  746  (3d  Am.  ed.). 

-  See  remarks  of  Sir  J.  Leach,  V.  C, 
in  .Kdderley  r.  Dixon,  1  Sim.  &  Stn. 
607. 

3  Sec  McDavit  r.  Pierrepoint,  23  N. 
J.  Eq.  45,  46;  Pinner  r.  Sharp,  Id. 
274;  Canterbury  Aqueduct  Co.  r. 
Ensworth,  22  Conn.  608;  Hetfield  r. 
Willc/,  105  111.  286;  Backus's  Appeal, 
58  Pa.  186;  Rennyson  r.  Rozell,  106 
Id.  407;  Darling  r.  Cummings,  92  Va. 
521;  Bates  Machine  Co.  r.  Bates,  192 
111.  138;  Thistle  .Mills  Co.  r.  Bone,  92 
Md.  47;  Canal  Commrs.  ?•.  Sanitary 
District,  191  111.  :V2G;  Madison  Ath- 
letic Ass'n  r.  Brittin,  60  N.  J.  Eq. 
160;  Gary  v.  Newton,  201  111.  170; 
Urpman  i-.  L-jwther  Oil  Co.,  53  \\'. 


Va.  501 ;  Sutton  v.  Miller,  219  111.  462; 
Chandler  r.  Chandler,  220  Pa.  311; 
Rudisill  ?•.  Whitener,  146  N.  C.  403. 
See  Turner  r.  Green  [1895],  2  Ch.  205, 
where  it  was  held  that  mere  silence 
as  to  a  material  fact,  which  one  party 
is  not  bound  to  disclose  to  the  other, 
will  not  prevent  a  decree  for  specific 
performance. 

•4  Davison  ?-.  Davis,  125  U.  S.  94; 
Cadwalader's  Appeal,  57  Pa.  158; 
Whitaker  r.  Robinson,  65  111.  411; 
Smith  7'.  Sheldon,  Id.  219;  Hallesy 
r.  Jackson,  66  Id.  1.39;  McCabe 
r.  Crosier,  69  Id.  501;  McLaurie  r. 
Barnes,  72  Id.  73;  Dragoo  r.  Dragoo, 
50  Mich.  573;  Meidling  v.  Trefz,  48 
N.  J.  Eq.  638;  Jencks  v.  Kearney,  62 
Hun,  621 ;  Chabot  v.  Winter  Park  Co., 
34  Fla.  258;  Davis  v.  Petty,  147  Mo. 
374;  Findley  v.  Koch,  126  1a.  131; 
Mahon  v.  Leech,  11  N.  D.  181.  But 
see  Wat.son  v.  Coast,  35  W.  Va.  463. 
But  not  where  the  default  has  been 
simply  in  collateral  contract.    Stew- 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


549 


is  of  a  speculative  nature;^  or  has  shown  a  backwardness  in 
fulfilling  the  contract  on  his  part; '  or  insists  upon  the  bar  of  the 
Statute  of  Limitations;  ^  or  where  the  contract  is  hard  and  desti- 
tute of  all  eciuity;  "*  or  is  oppressive  on  the  defendant,^  especially 
if  made  by  a  married  woman  ;^  or  which  is  illegal,  immoral,  or 
against  public  policy;^  or  the  condition  of  things  has  materially 
changed ;  *  unless  such  change  was  in  contemplation  at  the  time 
the  contract  was  entered  into;**  or  there  is  a  substantial  defect 
in  the  complainant's  title  not  remediable  before  decree;  or  the 
title  of  the  complainant  is  doubtful  or  one  that  would  involve 
the  defendant  in  litigation;  or  there  has  been  any  misrepresenta- 


art  V.  Metcalf,  68  111.  109;  or  where 
the  defendant,  on  his  part,  has  not 
shown  himself  willing  to  perform; 
Tate  V.  Pen.,  etc.,  Co.,  37  Fla. 
439. 

1  McCabe  v.  Matthews,  155  U.  S. 
550. 

2  Rose  V.  Swann,  56  111.  40;  Igle- 
hart  V.  Gibson,  Id.  81;  Cronk  v. 
Trumble,  66  Id.  428;  Hoyt  v.  Tux- 
bury,  70  Id.  331;  Miller  v.  Henlan, 
51  Pa.  265;  Rogers  v.  Williams,  28 
Leg.  Int.  341;  Kinney  v.  Redden, 
2  Del.  Ch.  46;  Hubbell  v.  Von 
Schoening,  49  N.  Y.  326;  Finch  v. 
Parker,  Id.  1;  Babcock  v.  Emriek, 
64  How.  Pr.  R.  435;  Crane  v.  De- 
camp, 21  N.  J.  Eq.  420;  Gish  v. 
Jamison,  96  Va.  312;  Steinhardt  v. 
Baker,  163  N.  Y.  410;  Holgate  v. 
Eaton,  116  U.  S.  33;  Kelsey  c.  Crow- 
ther,  162  U.  S.  404;  Ewing's  Appeal, 
18  W.  N.  C.  29;  Robbins  v.  Kimball, 
55  Ark.  414;  Stembridge  v.  Morgan, 
88  Ga.  447;  Alexander's  Appeal,  118 
Pa.  610;  Datz  v.  PhiUips,  137  Id. 
203. 

3  Nolan  V.  Snodgrass,  70  Miss.  794. 
*King    V.    Hamilton,    5    Pet.    211; 

Western  Railroad  v.  Babcock,  6  Met. 
346;  Backus's  Appeal,  59  Pa.  186; 
Rigg  V.  Railway  Co.,  191  Id.  304; 
Oil  Co.  V.  Oil  Co.,  47  W.  Va.  84;  Lud- 
1am  V.  Buckingham,  39  N.  J.  Eq.  503. 
But  see  Franklin  Tel.  (^'y.  v.  Harri- 


son, 145  U.  S.  459;  Haffner  v.  Dob- 
rinski,  17  Okla.  438. 

5  Wedgwood  v.  Adams,  6  Beav. 
600;  Webb  v.  London  &  Portsmouth 
R.  Co.,  1  De  G.,  M.  &  G.  521;  South- 
ern R.  Co.  V.  Franklin,  etc.,  R.  R. 
Co.,  96  Va.  693;  Goding  i'.  R.  R.  Co., 
94  Me.  542;  Leicester  r.  Front  Imp. 
Co.,  8  U.  S.  App.  374;  Federal  Oil 
Co.  V.  Western  Oil  Co.,  57  C.  C.  A. 
428;  Sanders  v.  Newton,  140  Ala. 
335;  Williamson  v.  Dils,  114  Ky.  962. 
Particularly  if  it  has  become  more 
onerous  through  the  delay  of  the 
complainant;  Andrews  i'.  Bell,  56 
Pa.  350;  Wonson  v.  Fenno,  129  Mass. 
405. 

6  Friend  v.  Lamb,  152  Pa.  529-536. 
7Dumont  r.  Dufore,  27  Ind.  263; 

Evans  v.  Kittrell,  33  Ala.  449;  Marsh 
V.  Fairbury  &  N.  R.  Co.,  64  111.  414; 
Foil's  Appeal,  91  Pa.  437;  Morgan  v. 
Bell,  3  Wash.  St.  554;  Nibert  r.  Bag- 
hurst,  47  N.  J.  Eq.  201.  The  defence 
need  not  be  set  up  by  defendant. 
Kreamer  v.  Earl,  91  Cal.  112. 

8  Peters  r.  Delaplaine,  49  N.  Y. 
362;  Booten  r.  Scheffer,  21  Gratt. 
474;  Miller  v.  Henlan,  51  Pa.  265; 
Kimball  v.  Tooke,  70  111.  553;  Gas 
Light  &  Coke  Co.  v.  Towse,  35  Ch. 
D.  519;  Urpman  v.  Oil  Co.,  53  W.  Va. 
501. 

9  South,  etc.,  R.  Co.  v.  Highland 
Av.,  etc.,  R.Co.,  117  Ala.  395. 


550 


SPECIFIC    PERFORMANCE. 


[part  hi. 


tion  or  mistake;  ^  (but  not  if  the  mistake  has  been  occasioned  by 
the  defendant's  own  carelessness  and  has  not  been  contributed 
to  by  the  vendor  and  the  contract  woidd  work  no  injustice  to  the 
defendant) ; '  or  the  contract  is  founded  on  imposition ;  ^  or  is 
made  by  an  agent  in  a  manner  not  authorized  by  the  principal ;  ^ 
oi'  will  involve  a  breach  of  trust;  ^  or  the  breach  of  a  prior  parol 
conti'act  for  the  sale  of  land  in  favor  of  a  subsequent  written 
agreement ;  ^  or  it  is  not  clear  that  the  minds  of  the  parties  have 
come  together;"  or  where  the  real  intention  of  the  parties  can  no 
longer  be  carried  into  effect ;  *  or  where  there  is  " sharp  practice" 
on  part  of  plaintiff;''  or  if  it  cannot  be  enforced  in  its  entirety;^" 
or  if  it  is  not  estabhshed  by  satisfactory  proof  ;^^  in  all  of  the  above 
cases  specific  performance  will  be  refused.^'  Moreover,  the  com- 
plainant is  not  entitled  to  specific  performance  if  he  has  consented 
to  a  rescission  of  the  contract  or  has  abandoned  it,  or  has  induced 
a  belief  by  the  other  party  that  it  has  been  abandoned. ^^    But 


1  Malins  v.  Freeman,  2  Keen,  25; 
Colyer  v.  Clay,  7  Beav.  188;  Union 
Bank  v.  Munster,  37  Ch.  D.  51; 
Bruck  i\  Tucker,  42  Cal.  346;  Jones 
V.  Clifford,  3  Ch.  D.  779;  Holmes's 
Appeal,  77  Pa.  50;  Miles  v.  Stevens, 
2  Id.  37;  Smith  v.  Sturgess,  65  How. 
Pr.  R.  360;  Mansfield  v.  Sherman,  81 
Me.  365;  MuUigan  v.  Albertz,  103 
Wis.  140;  Kelley  v.  York,  94  Me.  374; 
Kekaula  v.  Ehu,  10  Hawaii,  68; 
Cowan  V.  Curran,  216  111.  598. 

2  Van  Praagh  r.  Everidge  [1902],  2 
Ch.  271. 

3  Fish  V.  Leser,  69  111.  394;  Brady's 
Appeal,  66  Pa.  277;  Piersol  v.  Neill, 
63  Id.  420;  Merritt  r.  Wassenich,  49 
Fed.  Rep.  785;  Miller  v.  Tjexhus,  20 
S.  D.  12. 

4  Daniel  v.  .\dams,  Amb.  495;  and 
see  Proudfoot  v.  Wightman,  78  111. 
553;  Garrett  v.  Mining  Co.,  113  Mo. 
330  {ultra  vires),  and  Weise's  Appeal, 
72  Pa.  351.  For  a  case  where  a 
tenant  in  common  agreed  to  transfer 
without  the  consent  of  his  co-tenant, 
see  Olson  v.  Lovell,  91  Cal.  506. 

5  Mortlock  V.  Buller,  10  Ves.  292; 
2  L.  Ca.  Eq.  484,  note  to  Woollam  v. 


Hearn.  See  Whitlock  i'.  Washburn, 
62  Hun,  369,  and  Millsaps  v.  Shot- 
well,  76  Miss.  923. 

6  Maguire  v.  Heraty,  163  Pa.  381. 
See  Kirkland  v.  Downing,  106  Ga. 
530,  and  Lemon  v.  Randall,  124 
Mich.  687. 

7  Wistar's  Appeal,  80  Pa.  484. 
See  Brown  v.  Brown,  33  N.  J.  Eq. 
650;  Chute  v.  Quincy,  156  Mass.  189; 
Somerville  v.  Coppage,  101  Md.  519; 
Clinchfield  Co.  v.  Powers,  107  Va. 
393. 

8  South,  etc.,  R.  R.  Co.  v.  Highland 
Av.,  etc.,  R.  R.  Co.,  119  Ala.  105. 

8  Engberry  v.  Rousseau,  117  Wis. 
52. 

10  Hill  V.  Rich  Hill  Mining  Co.,  119 
Mo.  9;  Paris  v.  Greig,  12  Hawaii, 
274. 

11  Dalzell  I'.  Dueber  Watch  Co.,  149 
U.S.  315. 

12  Specific  performance  will  not  be 
decreed  of  a  contract  by  a  donee 
of  a  testamentary  power  to  bequeath 
property  by  will.  In  re  Parkin 
[1892],  3  Ch.  510. 

i:*  Lasher  v.  Loeffler,  190  111.  150; 
Young  V.  Jordan,  183  Id.  459. 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


551 


where  a  contract  is  fair  and  reasonable  when  it  is  made,  its  en- 
forcement will  not,  as  a  general  rule,  be  refused  because  unfore- 
seen events  have  subsequently  made  it  inequitable.^  Still  less 
will  it  be  refused,  simply  because  of  depreciation  in  value.^ 

377.  Contracts  must  be  mutual,  certain,  and  practicable. 

The  other  circumstances,  in  addition  to  those  already  men- 
tioned, which  usually  influence  the  discretion  of  a  chancellor 
in  decreeing  or  refusing  specific  performance,  are  that  the  agree- 
ment must  be  mutual,  that  its  terms  must  be  certain,  and  that  its 
enforcement  by  the  courts  must  be  practicable^  Equity  will  not 
decree  the  specific  performance  of  a  unilateral  contract.'*  Thus  a 
feme  covert  cannot  obtain  specific  p(?rformance  of  a  contract  which 
is  not  binding  on  her;  ^  and  the  rule  is  the  same  as  to  an  infant.** 
Nor  does  the  rule  mean  that  there  must  be  mutuality  as  to 


1  Homan  v.  Stewart,  103  Ala.  644; 
Prospect  Park  &  Coney  Is.  R.  R.  Co. 
V.  Coney  Is.  &  Brooklyn  Co.,  144 
N.  Y.  152.  See,  however,  Espert  v. 
Wilson,  190  111.  629. 

2  Clark  V.  Hutzler,  96  Va.  73. 

s  Chadwick  v.  Chadwick,  121  Ala. 
580;  Ryan  v.  McLane,  91  Md.  175. 

*  Marble  Company  r.  Ripley,  10 
Wall.  339;  Texas  &  Pac.  Ry.  Co.  v. 
Marshall,  136  U.  S.  407;  Strang  v. 
Richmond,  etc.,  R.  R.  Co.,  41  C.  C. 
A.  481;  Oil  Co.  v.  Oil  Co.,  47  W.  Va. 
84;  Baltimore  Humane  Society  v. 
Pierce,  98  Md.  352;  Bronson  v.  Cahill, 
4  McLean,  19;  Tyson  v.  Watts,  1 
Md.  Ch.  13;  Benedict  v.  Lynch,  1 
Johns.  Ch.  370;  Putnam  v.  Grace, 
161  Mass.  237;  Bodine  v.  Glading, 
21  Pa.  50;  Corson  v.  Mulvany,  49 
Id.  88;  Jones  v.  Noble,  3  Bush,  694; 
Ewins  V.  Gordon,  49  N.  H.  444;  Mc- 
Murtrie  v.  Bennett,  Harring.  Ch. 
(Mich.)  124;  Hawley  v.  Sheldon,  Id. 
420;  Hutcheson  v.  McNutt,  1  Ohio, 
14;  Sutherland  v.  Parkins,  75  111. 
338;  Meason  v.  Kaine,  63  Pa.  340; 
Peck  i\  Levinger,  6  Dak.  54;  Kenni- 
cott  V.  Leavitt,  37  111.  App.  435. 
See,  however,  Hayes  v.  O'Brien,  149 
111.  403;   Berry  v.   Frisbie,    120   Ky. 


338;  Pacific  Ry.  Co.  v.  Campbell,  153 
Cal.  106. 

5  Richards  v.  Green,  23  N.  J.  Eq. 
536;  Pinner  v.  Sharp,  Id.  274;  S.  V. 
Railroad  Co.  r.  Dunlop,  86  Va.  346; 
Warren  v.  Castello,  109  Mo.  338. 
When  a.  feme  covert  has  made  a  valid 
contract  for  the  sale  of  her  real  es- 
tate in  accordance  with  the  formal- 
ities prescribed  by  law,  she  may  be 
decreed  to  perform  it  specifically. 
Dankel  v.  Hunter,  61  Pa.  382. 

e  Flight  V.  Bolland,  4  Russ.  298; 
Wylson  I'.  Dunn,  34  Ch.  D.  569.  And 
specific  performance  of  an  agreement 
to  sell  real  estate  will  not  be  decreed 
against  a  vendor  whose  wife  refuses 
to  join  in  the  conveyance,  unless,  in- 
deed, the  vendee  is  willing  to  pay 
the  full  purchase-money,  and  accept 
the  deed  of  the  vendor  without  his 
wife  joining.  Riesz's  Appeal,  73  Pa. 
490;  Real  Estate  Co.  v.  Spelbrink, 
211  Mo.  671;  Burk's  Appeal,  75  Id. 
141;  Reilly  v.  Smith,  25  N.  J.  Eq. 
158;  McCormick  v.  Stephany,  57 
Id.  257;  People's  Savings  Bank  v. 
Parisette,  68  Ohio,  450.  See,  also, 
Yost  V.  Devault,  9  la.  .50.  As  to 
homestead  lands,  see  Moses  r.  Mc- 
Cl-in,  82  Ala.  370.     But  a  contract 


552 


.SPECIFIC    PERFORMANCE. 


[part  III. 


remedy.^  But  this  rule  does  not  apply  to  a  case  where  one  of  the 
jmrties  has  fully  performed  his  engagement.^  Nor  where  the  con- 
tract is  unilateral  only  in  form.^  Again,  the  terms  of  an  agree- 
ment must  be  certain.  It  was  one  of  the  rules  laid  down  by  Lord 
Rosslyn  in  Walpole  v.  Orford,  that  ''all  agreements  in  order  to 
be  executed  in  this  court  must  be  certain  and  defined ; "  '^  and  the 
law  as  thus  stated  is  well  settled  both  in  England  and  in  this 
country,^  having  been  recognized  in  many  cases  in  nearly  all  the 
states  of  the  Union.*^  This  rule  is,  however,  subject  to  two  cjuali- 
fications:  first,  that  specific  performance  will  not  be  refused  if  the 


in  which  one  party  has  an  option 
to  buy  is  not  so  devoid  of  mutuality 
as  to  prevent  a  court  of  equity  from 
decreeing  its  specific  performance. 
Corson  v.  Mulvany,  49  Pa.  88;  Smith 
&  Fleck's  Appeal,  69  Id.  480;  Peter- 
son V.  Chase,  115  Wis.  239. 

1  Northern  Cent.  Ry.  Co.  v.  Wal- 
worth, 193  Pa.  213;  Philadelphia 
Ball  Club,  Limited,  r.  Lajoie,  202 
Pa.  219,  where  the  subject  is  fully 
considered. 

2  Putnam  v.  Tinkler,  83  Mich.  628; 
Gira  v.  Harris,  14  S.  D.  537;  Boyd 
V.  Brown,  47  W.  Va.  238;  Spires  v. 
Urbahn,  124  Cal.  110;  Black  v. 
Maddox,  104  Ga.  157;  Walker  v.  Ed- 
mundson.  111  Id.  454;  Howe  y.  Wat- 
son, 179  Mass.  30;  French  v.  Boston 
Nat.  Bank,  Id.  404;  Finlen  ik  Heinze, 
32  Mont.  354;  Dickson  v.  Stewart,  71 
Neb.  424. 

3  Ross  ?■.  Parks,  93  Ala.  153. 

*  3  Ves.  420.  See  Pcarce  i'.  Watts, 
L.  R.  20  Eq.  492,  and  the  remarks  in 
Colgan  V.  Oil  Co.,  194  Pa.  239. 

5  See  Fry  on  Specific  Performance, 
§§  203  et  seq.,  and  §§  229  et  seq. 

6  Dodd  i\  Seymour,  21  Conn.  476; 
Waring  v.  .\yres,  40  N.  Y.  357;  King 
V.  Ruckman,  20  N.  J.  Eq.  316; 
Nichols  V.  Williams,  22  Id.  65;  Par- 
rish  V.  Koons,  1  Pars.  Eq.  97;  Ham- 
mer V.  McEldownev,  46  Pa.  334;  Van 
Horn  V.  Munnell,  145  Id.  497;  Reilly 
V.  Gautschi,  174  Id.  80;  Agnew  v. 
Southern  Av.  Land  Co.,  204  Id.  192; 


Canton  Co.  v.  Railroad  Co.,  21  Md. 
395;  Aday  v.  Echols,  18  Ala.  353; 
Madeira  v.  Hopkins,  12  B.  Mon.  595; 
Munsell  r.  Loree,  21  Mich.  491;  Bald- 
win V.  Kerlin,  46  Ind.  426;  Colson  i\ 
Thompson,  2  Wheat.  336;  Kendall 
('.  Almy,  2  Sumn.  278;  Mintum  i". 
Baylis,  33  Cal.  129;  Huff  v.  Shepard, 
58  Mo.  212;  Burkmaster  v.  Thomp- 
son, 36  N.  Y.  558;  Jordan  v.  Deaton, 
23  Ark.  704;  Matthews  v.  Jarrett,  20 
W.  Va.  415;  Breard  v.  Munger,  88 
N.  C.  297;  Preston  v.  Stuart,  5  Rep. 
100  (Sup.  Ct.  U.  S.) ;  Potter  v.  Hol- 
lister,  45  N.  J.  Eq.  508;  Bamman  r. 
Binzen,  47  N.  Y.  St.  Rep.  67;  Sawyer 
V.  Wallace,  47  Minn.  395;  Ham  v. 
Johnson,  55  Id.  115;  L.  S.  &  M.  S. 
Ry.  Co.  V.  Hoffert,  40  111.  App.  631; 
Horner  r.  W^oodland,  88  Md.  511; 
Vierra  v.  Ropert,  10  Hawaii,  294; 
Whittemore  v.  N.  Y.,  etc.,  R.  R.  Co., 
174  Mass.  363;  Berry  v.  Wortham, 
96  Va.  87;  Lee  v.  Stone,  21  R.  I.  123; 
Latimer  v.  Marchbanks,  57  S.  C. 
267;  Bomer  Bros.  v.  Canady,  79 
Miss.  222;  Burke  v.  Mead,  159  Ind. 
252;  Gile  v.  Dunbar,  181  Mass.  22; 
Kurdy  v.  Rogers,  10  Idaho,  410; 
Marks  v.  Gates,  2  Alaska,  519;  Tip- 
pins  V.  Phillips,  123  Ga.  415;  Folsom 
V.  Harr,  218  111.  369;  Kirkpatrick  ?•. 
Pettis,  127  la.  611;  Moore  v.  Galupo, 
65  N.  J.  Eq.  194;  Sprague  v.  Jessup, 
48  Oreg.  211;  Meyer  Land  Co.  v. 
Pecor,  18  S.  D.  466;  Freeburgh  v. 
Lamoreux,  15  Wj'o.  22. 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


553 


uncertainty  is  owing  to  the  fault  of  the  defendant;  ^  and,  second, 
that  in  obedience  to  the  maxim  id  cerium  est  quod  certum  reddi 
potest,  performance  will  be  decreed  if  the  means  of  ascertaining 
the  contract  are  at  hand.-  Indeed,  the  courts  have  gone  to  the 
length  of  saying  that  if  the  parties  have  incurred  obligations  un- 
der the  contract  of  such  a  character  that  they  cannot  be  placed 
in  statu  quo,  the  court  itself  can  fix  the  price,  where  it  has  not 
been  determined,  in  order  to  compel  specific  performance.^ 

Courts  of  Chancery  have  at  times  refused  to  decree  the  specific 
performance  of  a  contract,  where  it  was  deemed  impossible  to 
enforce  the  decree,  or  where  the  literal  performance  if  enforced 
would  be  a  vain  and  idle  act.  Thus,  the  courts  have  declined  to 
enforce  a  contract  to  work  the  line  of  a  railway  company,  and 
keep  its  engines  and  rolling  stock  in  order,  for  it  was  thought  to 
be  out  of  the  power  of  the  court  to  see  that  such  a  contract  was 
carried  out ;  ^  and  a  contract  to  convey  real  estate  or  other  prop- 


1  Pritchard  v.  Ovey,  1  J.  &  W.  .396; 
Ld.  Kensington  v.  Phillips,  5  Dow. 
61;  Mincey  v.  Foster,  125  N.  C.  541; 
Maryland  Const.  Co.  v.  Kuper,  90 
Md.  529. 

2  See  Walker  v.  The  Eastern  Coun- 
ties Railway,  6  Hare,  594;  Laird  v. 
The  Birkenhead  Railway  Co.,  Johns. 
Ch.  501 ;  Smith  v.  Peters,  L.  R.  20  Eq. 
oil;  Dike  v.  Green,  4  R.  I.  285;  Van 
Doren  v.  Robinson,  16  N.  J.  Eq.  256; 
Prater  v.  Miller,  3  Hawks,  628;  Felty 
V.  Calhoon,  139  Pa.  378;  Northern 
Cent.  Ry.  Co.  v.  Walworth,  193  Id. 
213;  Johnson  r.  Conger,  14  Abb.  Pr. 
195;  Fry  on  Specific  Performance, 
§  207;  Gloucester,  etc.,  Co.  v.  Cement 
Co.,  154  Mass.  92;  Jones  v.  Parker, 
163  Id.  564;  Work  v.  Welsh,  160  111. 
468;  White  v.  Poole,  74  N.  H.  71; 
Howison  V.  Bartlett,  141  Ala.  593. 

3  Town  of  Bristol  v.  Bristol  and 
Warren  Water  Works,  19  R.  I.  413; 
Grosvenor  v.  Flint,  20  Id.  (Part  I.) 
22;  Schneider  v.  Hildenbrand,  36  S. 
W.  R.  784.  See,  also,  for  a  case  in 
which  performance  of  a  part  of  a 
divisible  contract  was  compelled, 
Bower  v.  Bagley,  9  Wash.  642,  and 
Water  Co.  v.  Cherryvale,  65  Kan.  219. 


■*  Johnson  v.  Shrewsbury  and  Bir- 
mingham Railway  Co.,  3  De  G.,  M. 
&  G.  914.  See,  also,  Blackett  v. 
Bates,  L.  R.  1  Ch.  117;  Lone  Star 
Salt  Co.  V.  Ry.  Co.,  99  Tex.  434; 
Port  Clinton  R.  Co.  v.  The  Cleveland 
&  Toledo  R.  Co.,  13  Ohio  St.  544; 
Leonard  v.  Board  of  Directors,  79 
Ark.  42;  Buck  v.  Smith,  29  Mich.  171 ; 
Blanchard  r.  Detroit,  Lansing  &  Lake 
Mich.  R.  Co.,  31  Id.  45;  Marble  Com- 
pany V.  Ripley,  10  Wall.  339  (where 
the  rules  upon  this  subject  are  laid 
down  by  the  Supreme  Court  of  the 
United  States);  Ross  v.  The  Union 
Pacific  R.  Co.,  1  Woolw.  26;  Fallon 
V.  Railroad  Co.,  1  Dill.  121;  Berliner 
Gramaphone  Co.  v.  Seaman,  49 
C.  C.  A.  99;  Mastin  v.  Halley,  61 
Mo.  201;  Beck  v.  Allison,  56  N.  Y. 
368;  Grape  Creek  Coal  Co.  i-.  Spell- 
man,  39  111.  App.  630;  Ewing  i'. 
Litchfield,  91  Va.  575;  Meehan  v. 
Owens,  196  Pa.  69,  where  the  court 
refused  specific  performance  of  a  con- 
tract of  sale  of  a  license  to  sell  liquor 
together  with  the  lease,  good  will 
and  fixtures  of  a  saloon.  And  where 
the  specific  performance  of  the  con- 
tract   would    be    impracticable,    the 


Oo4  SPECIFIC    PERFORMANCE.  [PART  III. 

erty,  of  which  the  vendor  has  no  title,  will  not  be  decreed,  for  such 
a  decree  would  be  simply  nugatory.^  80,  also,  the  court  has  de- 
clined to  enforce  a  contract  to  sell  a  half  interest  in  a  newspaper 
business,  thus  creating  a  partnership  requiring  personal  skill  and 
judgment.-  The  performance  of  the  contract,  in  short,  must  not 
be  impracticable. •'' 

But,  on  the  other  hand,  if  it  be  within  the  power  of  the  court 
to  supervise  the  performance  of  the  contract,  and  the  equities 
which  justify  its  specific  enforcement  exist,  the  agreement  will  be 
enforced.  And  of  late  the  su])ervisory  power  of  the  courts  has 
been  extended  to  cases  which  it  formerly  might  not  have  been 
thought  to  cover.  Thus,  courts  of  equity  have  assumed  jurisdic- 
tion to  enforce  the  performance  of  contracts  to  operate  railways, 
for  the  enforcement  of  agreements  between  railroad  companies 
for  the  use  of  their  tracks,  and  the  like;  and  this  advancement  in 
remedial  equity  must  be  deemed  not  only  serviceable  in  the  in- 
terests of  the  business  affairs  of  men,  but  justified  by  the  inherent 
elasticity  of  chancery  powers/  The  decree  in  any  given  cause, 
therefore,  must  depend  largely  ujjon  the  features  of  the  particular 
case,  as  well  as  upon  the  general  rules  now  under  consideration.^ 

complainant,  of  course,  cannot  gain  Rock  Island  and  Pac.  Ry.  Co.,  163 

his  end  by  seeking  it  in  the  form  of  Id.  600;  Prospect  Park  &  Coney  Is. 

an  injunction  against  the  breach  of  R.  R.  v.  Coney  Is.  &  Brooklyn  Co., 

the   contract.      Pullman   Car   Co.    v.  144  N.  Y.   152;  The  Omaha  Bridge 

Tex.  &  Pac.  R.  Co..  4  Woods  C.  Ct.  Cases,   10  U.  S.  App.  98;   Butchers' 

:m.  Co.  V.  P.  &  R.  R.  R.  Co.,  31  Id.  252; 

1  Kennedy  v.  Hazelton,  128  U.  S.  Seaboard  R.  R.  Co.  v.  W.  &  A.  R.  R. 
671;  Fitzpatrick  r.  Featherstone,  3  Co.,  97  Ga.  289  (a  case  of  injunction); 
Ala.  40;  Woodward  r.  Harris,  2  Barb.  Bald  Eagle  V.  R.  R.  Co.  v.  Nittany 
439.  V.  R.  R.  Co.,  171  Pa.  284;  Cumber- 

2  Clark  ('.  Truitt,  183  111.  239.  land  V.  R.  R.  Co.  v.  Gettysburg  & 

3  See  Jones  r.  Newhall,  115  Mass.  Harrisburg  Ry.  Co.,  177  Id.  519; 
244,  §§  37  and  200,  ante,  and  au-  Bienville  Water  Supply  Co.  v.  City 
thorities  there  cited,  and  Cutting  v.  of  Mobile,  112  Ala.  260,  742; 
Dana,  25  X.  J.  Eq.  265;  Moore  v.  Schmidtz  v.  L.  &  N.  R.  R.  Co.,  101 
Tuohy,  142  Cal.  347;  Bomer  Bros.  Ky.  441;  Southern  R.  Co.  v.  Frank- 
r.  Canady,  79  Miss.  222;  Chadwick  v.  lin,  etc.,  R.  Co.,  96  Va.  693. 
Chadwick,  121  .\la.  580;  Paris  v.  ^See  Lawrence  v.  Saratoga  Lake 
Greig,  12  Hawaii,  274.  Rd.,    36    Hun,    407.      Contrast    this 

■•See  for  cases  in  which  the  court  with  Ryan  v.  Westminster  Chambers 
has  decreed  specific  performance  of  Association  [1892],  1  Ch.  427,  reversed 
contracts  to  operate  railroads,  etc.,  in  [1893]  1  Ch.  116.  See,  also,  Equi- 
Joy  V.  St.  Louis,  13S  U.  S.  1 ;  Franklin  table  Gas  Light  Co.  v.  Bait.  Coal  Tar 
Tel.  Co.  V.  Harrison,  145  Id.  459;  (^o.,  63  Md.  285;  Pomeroy  v.  Fuller- 
Union    Pacific    R}\    Co.    v.    Chicago,  ton,  113  Mo.  440;  Fortescue  v.  Lost- 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


555 


378.  Purchaser  not  compellable  to  accept  a  doubtful  title. 

It  is  a  settled  and  invariable  rule  that  a  purchaser  shall  not 
be  compelled  by  a  decree  of  a  court  of  e(]uity,  in  a  suit  for  specific 
performance,  to  accept  a  doubtful  title.'  It  lias  been  said  that 
the  title  which  a  purchaser  is  compelled  to  take  ought,  like 
Caesar's  wife,  to  be  free  even  from  suspicion ;  -  although  in  some 
cases  the  rule  has  not  been  enfoi'ced  with  c^uite  that  degree  of 
strictness.  Thus,  in  Beioley  v.  Carter,^  a  purchaser  was  com- 
pelled to  take  a  title  which  appeared  good  to  the  Court  of  Ap- 
peals although  the  judge  of  the  court  below  had  been  of  a  dif- 
ferent opinion ;  and  in  Dalzell  v.  Crawford**  it  was  said  that 
adverse  opinions  of  conveyancers  and  counsel  did  not  constitute 
a  sufficient  ground  for  refusing  a  decree.  But  the  general  current 
of  authority  is  undoubtedly  against  forcing  upon  a  purchaser  any 
title  as  to  which  there  may  be  the  slightest  doubt  or  suspicion;  ^ 
although  it  is  difficult  to  extract  from  the  decisions  any  rule  which 
can  always  be  applied.  "To  force  a  title  on  a  purchaser,"  says 
the  Vice-Chancellor  in  Rogers  v.  Waterhouse,  "  the  opinion  of  the 
court  in  favor  thereof  must  be  so  clear  that  it  cannot  be  apjire- 
hended  that  another  judge  may  form  a  different  opinion."  ^ 


withiel  &  Fowey  Ry.  Co.  [1894],  3 
Ch.  621 ;  Cornwall  and  Lebanon  R.  R. 
Co.'s  Appeal,  125  Pa.  232,  and  La 
Junta  &  Lamar  Canal  Co.  v.  Hess, 
31  Colo.  1. 

1  Dyker  L.  &  I.  Co.  v.  Cook,  159 
N.  Y.  6;  Simis  v.  McElroy,  160  Id. 
156;  Fahy  v.  Cavanagh,  59  N.  J.  Eq. 
278;  Van  Zandt  v.  Garretson,  21  R. 
I.  418;  Emerson  v.  Schwindt,  108 
Wis.  167;  Newberry  v.  French,  98 
Va.  479;  Murray  v.  Railroad  Co.,  64 
S.  C.  520;  Zane  v.  Weintz,  65  N.  J. 
Eq.  214. 

2  1  Sug.  V.  &  P.  577  (8th  Am. 
ed.). 

3  L.  R.  4  Ch.  230.  See  Collier  v. 
McBean,  1  Id.  81. 

*  1  Pars.  Eq.  (Pa.)  37. 

5  Pyrke  i>.  Waddingham,  10  Hare, 
1;  Hepburn  i).  Dunlop,  1  Wheat.  179; 
Richmond  v.  Gray,  3  Allen,  25; 
Swayne  v.  Lyon,  67  Pa.  436;  Herz- 
berg  1'.  Irwin,  92  Id.  48;  Reighard's 
Estate,  Clouse's  Appeal,  192  Id.  Ill; 


Griffin  v.  Cunningham,  19  Gratt.  571 ; 
Owings  V.  Baldwin,  8  Gill,  3;!7; 
Voorhees  v.  De  Meyer,  "3  Sandf.  (  li. 
614;  Sebring  v.  Mersereau,  9  Cow. 
344;  People  v.  Stock  Brokers'  Build- 
ing Co.,  92  xN.  Y.  98;  Butler  r. 
O'Hear,  1  Dess.  382;  Thompson  r. 
Dulles,  5  Rich.  Eq.  370;  Laurens  v. 
Lucas,  6  Id.  217;  Hoyt  v.  Tuxburv, 
70  111.  331;  Page  i\  Greely,  75  Id. 
400;  Smith  v.  Turner,  50  Ind.  372; 
Lewis  V.  Herndon,  3  Litt.  358;  Kelly 
V.  Bradford,  3  Bibb,  317;  Fitzpatrick 
V.  Featherstone,  3  Ala.  40;  Towiis- 
hend  v.  Goodfellow,  40  Minn.  :512; 
Abbott  V.  James,  111  N.  Y.  673; 
Oakey  v.  Cook,  41  N.  J.  Eq.  350; 
Godfrey  v.  Rosenthal,  17  S.  D.  452. 
8  Rogers  v.  Waterhouse,  4  Drew. 
329;  Hedderly  v.  Johnson,  42  Minn. 
443;  McPherson  v.  Shade,  149  N.  Y. 
16;  Hunting  v.  Damon,  160  Mass.  441. 
In  Levy  ?'.  Iroquois  Building  Co.,  80 
Md.  300,  it  was  said  that  the  doubt 
which  will  excuse  a  purchaser  from 


550 


SPECIFIC    PEllFORMANCE. 


[part  III. 


379.  Pyrhe  v.    Waddingham. 

Pyrke  v.  Waddinghaiii  ^  may  probably  be  considered  the  lead- 
ing case  upon  this  subject  in  England.  The  proposition  was 
there  laid  down  that  a  doubtful  title  which  a  purchaser  will  not 
be  compelled  to  accept  is  not  only  a  title  upon  which  the  court 
entertains  doubt,  but  includes  also  a  title  which,  although  the 
court  has  a  favorable  opinion  of  it,  yet  may  reasonably  and  fairly 
be  questioned,  in  the  opinion  of  other  competent  persons;  for  the 
court  has  no  means  of  binding  the  question  as  against  adverse 
claimants,  or  of  indemnifying  the  purchaser,  if  its  own  opinion 
in  favor  of  the  title  should  turn  out  not  to  be  well  founded.  If 
the  doubts  as  to  a  title  arise  upon  a  question  connected  with  the 
general  law,  the  court  is  to  judge  whether  the  general  law  upon 
the  point  is  or  is  not  settled ;  and  if  it  be  not,  or  if  the  doubts  as  to 
the  title  may  be  affected  by  extrinsic  circumstances,  which 
neither  the  purchaser  nor  the  court  can  satisfactorily  investigate, 
specific  performance  will  be  refused.  These  propositions  were 
adopted  as  correct  statements  of  the  law  upon  this  subject  in  the 
subsequent  case  of  Mullings  v.  Trinder,  decided  in  1870.' 

380.  Other  rules  as  to  title. 

The  mere  possibilitii  of  an  adverse  claim  is  not  sufficient  to 
render  a  title  doubtful,^  nor  a  mere  pecuniary  charge,  if  the  pur- 
chaser can  be  protected  against  it."*  And  if  the  decree  can  pro- 
vide for  the  vesting  of  a  good  title  in  the  purchaser  he  will  be 
con:ipelled  to  accept  it.^ 

It  may  be  added  here  that  it  has  been  decided  that  a  court  of 
equity  will  decree  specific  performance  if  the  vendor  is  able  to 


completing  a  contract  of  sale  must 
be  a  reasonable  one.  See,  also,  Mary- 
land Const.  Co.  V.  Kuper,  90  Id.  529. 

1  10  Hare,  1. 

2  L.  R.  10  Eq.  449.  Singular  to 
say,  in  this  case,  Lord  Romilly,  M. 
R.,  while  approving  of  the  rules  laid 
down  by  (then)  Vice-Chancellor 
Turner  in  Pyrke  v.  Waddingham, 
refused  to  follow  that  decision  under 
exactly  similar  circumstances.  See 
In  re  Thackwray  and  Young's  Con- 
tract, 40  Ch.  D.  38.  A  collection  of 
examples  of  titles. which  have  been 
held  good  and  those  which  have  been 
lield  bad  or  doubtful  will  be  found  in 


Watson's  Compendium  of  Equity, 
1040,  1041.  See  note  to  Cornell  v. 
Andrews,  35  N.  J.  Eq.  7;  Dingley  v. 
Bon,  130  N.  Y.  607;  Walker  v.  Gill- 
man,  127  Mich.  269. 

3  Hillary  v.  Waller,  12  Ves.  252. 
See,  also,  Vreeland  v.  Blauvelt,  23 
N.  J.  Eq.  483;  Lyman  v.  Gedney, 
114  111.  388.  But  see  Chauncey  v. 
Leominster,  172  Mass.  340. 

^Tiernan  v.  Roland,  15  Pa.  441; 
Thompson  v.  Carpenter,  4  Id.  132; 
Megibben  v.  Perin,  49  Fed.  Rep.  183; 
Hudson  V.  Max  Meadows  L.  &  I.  Co., 
97  Va.  341. 

5  Doebler's  Appeal,  64  Pa.  9. 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


557 


make  a  good  title  at  any  time  before  final  decree.^  But  this  doc- 
trine will  not  be  carried  to  the  extent  of  holding  that  a  vendor 
is  entitled  to  specific  penormance  if  he  had  no  title  at  the  date  of 
the  contract,  although  he  may  have  subsequently  acquired  one ; 
'or  one  who  speculates  upon  that  which  is  not  within  his  control 
is  not  a  bona  fide  contractor,  and  there  is  no  mutuality  between 
the  parties.^ 

When  a  vendor  has  a  defective  title  the  vendee  may,  if  he 
chooses  to  rely  upon  the  covenants  for  title,  compel  the  specific 
performance  of  the  contract.^ 

But  where  the  vendor  has  no  title,  the  vendee  cannot  compel 
a  conveyance,  for  that  would  be  to  decree  the  performance  of  an 
unlawful  act.'* 


381.  Parol  variations  of  written  contracts;  Townshend  v. 

StiiHi/room. 

It  was  (and  is)  a  well-established  rule  in  England  that  specific 
performance  of  a  written  contract  with  a  parol  variation  will  not 
be  enforced.  What  is  meant  by  this  rule  is  this:  The  ordinary 
principle  of  evidence  in  regard  to  contracts  which  have  been  re- 


'  Hepburn  v.  Dunlop,  1  Wheat 
179;  Baldwin  v.  Salter,  8  Paige  Ch 
47;i;  Graham  v.  Hackwith,  1  Marsh 
423;  Tyree  v.  Williams,  3  Bibb,  365 
Seymour  v.  Delancey,  3  Cow.  445; 
Moss  V.  Hanson,  17  Pa.  379;  Tiernan 
V.  Roland,  15  Id.  429;  Richmond  ?'. 
Gray,  3  Allen,  25;  Luckett  r.  Wil- 
liamson, 37  Mo.  388;  Fraker  v.  Bra- 
zelton,  12  Lea  (Tenn.),  278;  Murrell 
V.  Goodyear,  1  De  G.,  F.  &  J.  432; 
Gibson  v.  Brown,  214  111.  330;  Dunn 
r.  Stowers,  104  Va.  290;  Kentucky 
Warehouse  Co.  r.  Blanton,  149  Fed. 
Rop.  31.  Specific  performance  will 
not  be  decreed  on  the  application  of 
a  vendor  unless  his  ability  to  make 
such  title  as  he  agreed  to  make  be 
unquestionable.  In  a  contract  for 
the  purchase  of  a  fee,  if  no  encum- 
brance be  communicated  to  the  pur- 
chaser or  be  known  to  him,  he  is 
entitled  to  an  unencumbered  title, 
and  a  court  of  equity  will  not  de- 
cree specific  performance,  unless  the 


vendor  is  able  to  do  all  that  it  is 
incumbent  on  him  to  do.  The  ob- 
jection is  not  confined  to  doubtful 
titles.  It  applies  to  encumbrances 
of  every  description  which  may  in 
any  manner  embarrass  the  purchaser 
in  the  full  and  quiet  enjoyment  of 
his  purchase.  Sloan  v.  Rose,  101 
Va.  151. 

2  Forrer  r.  Nash,  35  Beav.  167; 
Bellamy  v.  Debenham  [1891],  1  Ch. 
412;  In  re  Bryant  &  Barningham's 
Contract,  44  Ch.  D.  218;  Wilson  v. 
Williams,  3  Jur.  (n.  s.)  810;  Tiernan 
V.  Roland,  15  Pa.  429;  Moss  ?•.  Han- 
son, 17  Id.  379;  Fry  on  Spec.  Perf. 
§  875.  But  see  Mortlock  r.  Builer, 
10  Ves.  315. 

3  Harding  v.  Parshall,  56  III.  227. 
*  Chartier   v.   Marshall,    51    N.    H. 

400.  See  Adams's  Eq.  80,  81; 
Morgan  v.  Bell,  3  Wash.  St.  554, 
and  Moses  v.  McClain,  82  Ala.  370; 
Ormsby  v.  Graham,  123  la.  202. 


558  SPECIFIC    PERFORMANCE.  [PART  III. 

duced  to  writing,  is  that  the  intention  of  the  parties  is  to  be 
gathered  solely  from  the  written  agreement,  and  that  no  evidence 
can  be  admitted  to  show  any  verbal  qualification  of  the  writing. 
Cases  of  fraud  or  mistake  formed,  as  we  have  seen,  exceptions  to 
this  rule.^  It  has  been  also  observed,  in  the  preceding  pages,  that 
equity  would  not  lend  its  aid  to  the  enforcement  of  a  contract 
into  which  a  party  had  been  induced  to  enter  by  misrepresenta- 
tion or  mistake.  Hence,  if  from  these  causes  a  material  stipula- 
tion had  been  omitted  from  an  agreement,  or  the  agreement  did 
not  express  the  real  intention  of  the  parties,  parol  evidence  to 
establish  that  such  was  the  case  was  adn:iissible  on  behalf  of  the 
defendant,  and  constituted  a  good  defence  to  the  complainant's 
bill.  But  then  the  question  occurred — ought  equity  to  go  one 
step  further?  Sui)pose  a  written  contract  had  been  drawn  and 
executed,  which  by  reason  of  some  mistake  or  deceit  did  not 
properly  express  the  intention  of  the  parties;  could  the  com- 
plainant show,  by  parol  evidence,  what  the  contract  actually  was, 
and  then  have  a  decree  for  the  specific  performance  of  the  written 
agreement  as  modified  by  the  parol  evidence?  In  England  this 
question  was  answered  in  the  negative.  The  distinction  is  there 
well  established  between  a  party  seeking,  and  one  resisting 
specific  performance — })arol  evidence  to  vary  a  written  instru- 
ment being  admissible  in  the  latter  case,  and  not  in  the  former.^ 
The  difference  between  a  plaintiff  seeking  and  a  defendant 
resisting  specific  performance  is  well  illustrated  by  the  case  of 
Townshend  v.  Stangroom,^  in  which  both  parties  to  a  contract 
to  lease  filed  bills,  one  to  have  the  contract  enforced  as  it  was 
written,  the  other  to  have  it  carried  out  as  modified  by  parol. 
Lord  Eldon  dismissed  both  bills:  the  first,  because  parol  evidence 
was  admissible  on  l;)ehalf  of  the  defendant;  the  second,  because 
evidence  of  the  same  kind  was  not  admissible  on  behalf  of  the 
complainant;  and  this  distinction  has  been  always  recognized.^ 

38t>.  Authorities  in  the  United  States. 

In  this  country,  however,  although  there  has  been  some  con- 
flict of  authority,  the  better  opinion,  perhaps,  is  that  the  English 
rule  ought  not  to  be  strictly  followed;  but  that  in  proper  cases 

1  Ante,  §  258.  v.  Hearn,  2  Lead.  Cas.  Eq.  481,  and 

2  This  di.stinction  is  independent  of      notes. 

the  Statute  of  Frauds.  ^  Darnley  v.  Lond.,  Chat.   &  Dov. 

^6  "\'esey.  328.    Sec,  also,  Olley  v.       R.  Co.,   L.  R.  2  H.   L.   43;   Fry  on 
Fisher,  34  Ch.  D.  367,  and  Woollana      Spec.  Perf.  §§  515  et  seq. 


CH.  I.]  SPECIFIC    PERFORMANCE.  559 

of  fraud  or  mistake,  a  party  ought  to  have  the  assistance  of  a 
chancellor  in  enforcing  a  written  contract  with  a  parol  variation. 
This  was  laid  down  by  Chancellor  Kent,  in  the  case  of  Gillespie  v. 
Moon,^  and  has  been  recognized  in  several  states.'  In  others  the 
case  has  not  been  followed  and  the  English  rule  is  adhered  to.^ 

It  must  next  be  noticed  that  an  important  point  which  is 
often  to  be  taken  into  consideration,  in  determining  whether  a 
contract  shall  or  shall  not  be  enforced,  is  the  effect  of  the  Statute 
of  Frauds.  In  cases  which  fall  within  that  statute,  it  is  obvious 
that  to  carry  the  rule  in  Gillespie  v.  Moon  to  the  extent  of  hold- 
ing that  an  agreement  (for  example)  to  convey  fifty  acres  may, 
for  the  sake  of  justice  and  equity,  be  construed  to  mean  a  con- 
tract to  convey  one  hundred,  would  be  to  repeal  the  Statute  of 
Frauds,  and  to  give  effect  to  a  simple  verbal  agreement  to  sell 
land.  Where,  however,  the  contention  of  the  complainant  is 
that  something  which  is  actually  embraced  in  the  writing  was 
not  intended  to  be  included  therein,  to  suffer  him  to  show  this 
is  not  to  enforce  a  parol  contract  in  relation  to  land,  it  is  simply 
to  prove  that  a  written  contract  did  not  embrace  all  that  on 
its  face  it  appeared  to  include.'*  Such  was  the  actual  state  of 
the  case  in  Gillespie  v.  Moon.^ 

383.  Statute  of  Frauds  ;  exceptions. 

It  is  well  known  that  by  the  Statute  of  Frauds  (the  provisions 
of  which  have  been  adopted  by  legislative  enactments  in  most 
of  the  United  States)  all  uncertain  interests  in  land  created  i^y 
parol  merely  had  the  force  and  effect,  both  at  law  and  in  equity, 

12  Johns.  Ch.  585.  199;  Dennis  v.  Dennis,  4  Rich.  Eq. 

2  See  Keisselbrack  v.  Livingston,  4  o07;  Best  v.  Stow,  2  Sandf.  Ch.  298; 
Johns.  Ch.  144;  Wall  V.  Arrington,  13  Climer  v.  Hovey,  15  Mich.  18;  and 
CJa.  88;  Mosby  v.  Wall,  23  Miss.  81;  see  American  note  to  Woollam  v. 
Philpott  V.  Elliott,  4  Md.  Ch.  273;  Heam,  2  Lead.  Cas.  Eq.  484,  485 
Creighi'.  Boggs,  19  W.  Va.  240;Moale  (4th  Am.  ed.);  1  Sug.  V.  &  P.  243 
V.  Buchanan,  11  Gill  &  J.  314;  Tilton  (8th  Am.  ed.),  and  notes;  Davis  i'. 
V.  Tilton,  9  N.  H.  S85;  Bellows  v.  Ely,  104  N.  C.  16;  Macomber  v. 
Stone,  14  Id.  175;  Bradford  v.  Union  Peckham,  16  R.  I.  485. 

Bank,  13  How.  57;  Ballou  v.  Sher-  <  See  American  notes  to  Woollam 

wood,  32  Neb.  666;  Gloucester,  etc.,  v.  Hearn,  ut  sup. 

Co.  V.  Cement  Co.,  154  Mass.  92.  5  gee  Glass  v.  Hulbert,   102  Mass. 

3  Elder  v.  Elder,  1  Fairfield,  80;  24,  where  the  authorities  are  exam- 
Osbom  V.  Phelps,  19  Conn.  63;  West-  ined  and  the  case  of  Gillespie  v.  Moon 
brook  V.  Harbeson,  2  McCord  Ch.  explained.  See,  also,  Olson  v.  Erick- 
112;  Brooks  v.  Wheclock,  11  Pick.  son,  42  Minn.  440,  and  article  in  24 
439;  Miller  v.  Chetwood,  2  N.  J.  Eq.  Am.  Law  Reg.  81. 


560  SPECIFIC   PERFORMANCE.  [PART  III. 

of  estates  at  will  only,  saving  always  leases  not  exceeding  three 
years  from  the  making  thereof.  While,  however,  the  provisions 
of  this  statute  were  rigorously  enforced  at  law,  it  was  considered 
in  equity  that  a  case  might  be  taken  out  of  the  statute  by  peculiar 
circumstances  which  might  render  its  application  inequitable 
and  unjust.  The  statute  being  designed  to  prevent  frauds,  equity 
would  not  allow  it  to  be  used  or  set  up  for  the  purpose  of  effecting 
a  fraud.'  Hence  there  arose  certain  well-established  exceptions 
to  the  statute,  in  which  ecjuity  would  lend  its  aid  to  protect  a 
party  in  the  enjoyment  of  real  estate,  or  actively  to  assert  his 
rights  thereto  under  a  parol  contract.'  These  cases  may  be  re- 
duced to  three  classes:  first,  where  there  has  been  a  part  perform- 
ance of  the  contract;  secondly,  where  the  reduction  of  the  con- 
tract to  writing  has  been  prevented  by  fraud ;  and  thirdly,  where 
the  contract  is  admitted  by  the  defendant's  answer,  and  the 
statute  is  not  set  up  as  a  defence.^ 

3S1:.  Part  pert'oriuance. 

Tile  doctrine  of  part  performance  is  based  upon  the  principle 
t  rJ.  where  a  contract  is  so  far  performed  that  the  parties  could 
'5  01  ho  restored  to  their  original  position  if  the  contract  was 
]  -icinded,  it  would  be  highly  unjust  to  allow  any  technical  objec- 
li'Vii  to  the  fulfilment  of  the  contract  to  be  interposed.^  Hence, 
if  a  v(>rbal  contract  is  made  for  the  sale  of  real  estate,  and  is  acted 
upon  to  the  extent  above  indicated,  neither  party  can  then  refuse 
to  perform  it  on  the  ground  that  the  provisions  of  the  Statute 
of  Frauds  have  not  been  complied  with.  If,  for  example,  upon 
thc>  faith  of  a  parol  agreement,  the  purchaser  has  gone  into  pos- 
session, has  paid  the  purchase-money,  and  has  made  valuable 
itiil)rovements,  the  vendor  will  not  be  suffered  to  set  up  the  Stat- 
ute of  Frauds  as  a  ground  for  refusing  to  execute  a  conveyance. 
The  case,  as  it  is  said,  is  taken  out  of  the  statute.^ 

1  See  this  phase  oxplaiiu'd  in  Brit-  ^  Jorgensen  v.  Jorgensen,  81  Minn, 
ain   r.  Rossiter,   11   Q.   B.  Div.   130,       428. 

and   Maddison    r.   Alderson,   8   App.  5  Adams's  Eq.  86.     See  Maddison 

Cas.  474.     See  Svanburg  i\  Fosseen,  v.  Alderson,  8  App.  Cas.  474  (where 

75  Minn.  .350.  the  doctrine  is  carefully  explained  by 

2  As  to  the  evidence  required  in  Lord  Selborne) ;  and  Whitney  r.  Hay, 
such  cases,  see  Lord's  Appeal,  105  181  U.  S.  90-91.  Also,  Britain  r. 
Pa.  451;  Moycr'S  Appeal,  Id.  432.  Rossiter,  11  Q.  B.  Div.  130;  Howard 

3  See  Smith's  Manual  of  Equity,  r.  Mfg.  Co.,  38  Ch.  D.  156;  Miller  /■. 
252.  Sharp  [1899],  1  Ch.  625;  Wainwright 


CH.  I.J 


SPECIFIC    PERFORMANCE. 


561 


385.  What  constitutes  part  performance. 

The  general  doctrine  of  part  performance  is  well  established ; 
and  is  recognized  in  most  of  the  states  of  the  Union. ^  The  diffi- 
culty in  most  cases  has  l)een  to  say  what  will  take  a  case  out  of 
the  statute ;  in  other  words,  what  must  be  the  predicament  of  the 
parties  which  would  justify  a  court  in  saying  that  it  would  be  in- 
equitable to  suffer  the  bar  of  the  statute  to  be  set  up.- 

V.  Talcott,  60  Conn.  4.3;  Miller  v. 
Lorentz,  39  W.  Va.  160.  While  the 
fact  that  the  rents  or  the  proceeds 
from  the  use  of  the  premises  alleged 
to  have  been  given  to  defendants 
greatly  exceeded  the  cost  or  value 
of  the  improvements  which  defend- 
ants, relying  upon  such  gift,  placed 
thereon  should  not  be  made  a  dis- 
tinct ground  for  refusal  to  execute 
a  parol  gift,  such  fact  should  be  con- 
sidered in  determining  the  nature 
and  extent  of  the  alleged  improve- 
ment, and  in  testing  the  alleged 
grounds  for  equitable  interposition. 
Young  V.  Crawford,  82  Ark.  33. 

1  In  Wright  v.  Pucket,  22  Gratt. 
374,  it  is  said  that  from  the  numerous 
decisions  upon  the  subject  the  fol- 
lowing principles  may  be  extracted: 

1st.  The  parol  agreement  relied  on 
must  be  certain  and  definite,  and  defi- 
nite in  its  terms; 

2d.  The  acts  proved  in  part  per- 
formance must  refer  to,  result  from, 
or  be  made  in  pursuance  of  the  agree- 
ment proved;  and 

3d.  The  agreement  must  have 
been  so  far  executed  that  a  refusal  of 
full  execution  would  operate  as  a 
fraud  upon  the  party,  and  place  him 
in  a  situation  which  does  not  lie  in 
compensation. 

The.se  propositions  seem  to  be 
fairly  deducible  from  the  authorities. 
See,  upon  this  subject,  Purcell  v. 
Miner,  4  Wall.  513;  Boyd  r.  Brown, 
47  W.  Va.  238;  Alexander  v.  Alex- 
ander, 150  Mo.  579;  Newton  i'. 
Swazey,  8  N.  H.  9;  Annan  v.  Mer- 
ritt,    13    Conn.    478;    Parkhurst    v. 

36 


Van  Cortland,  14  Johns.  15;  Miller 
V.  Ball,  64  N.  Y.  286;  Kennedy  v. 
Anderson,  49  Wash.  14;  Dougan  v. 
Blocher,  24  Pa.  28;  McCue  ?-.  John- 
.ston,  25  Id.  306;  McGibbeny  v. 
Burmaster,  53  Id.  332;  Reno  v. 
Moss,  120  Id.  61 ;  Hancock  v.  Melloy, 
187  Id.  379;  Pleasanton  v.  Raughlej^ 
3  Del.  Ch.  124;  Cannon  !•.  CoUins,  Id. 
132;  Campbell  v.  Freeman,  20  W.  Va. 
398;  Gough  v.  Crane,  3  Md.  Ch.  119; 
Hardesty  v.  Richardson,  44  Md.  617; 
Wilde  V.  Fox,  1  Rand.  165;  Printup 
V.  Mitchell,  17  Ga.  558;  Parke  v.  Lee- 
wright,  20  Mo.  35;  Sweeny  v.  O'Hara, 
43  la.  36;  Ottenhouse  v.  Burleson, 
11  Tex.  87;  Arguello  v.  Edinger, 
10  Cal.  150;  Burnell  v.  Bradbury, 
67  Kan.  762 ;  Hinkle  v.  Hinkle,  55 
Ark.  583;  Morris  v.  Gaines,  82  Tex. 
255;  Verzier  v.  Convard,  75  Conn. 
1;  Teske  v.  Dettberner,  70  Neb. 
544.  In  other  states,  however,  the 
rule  is  different.  See  Stearns  v. 
Hubbard,  8  Greenl.  320;  Patterson  v. 
Yeaton,  47  Me.  308;  Parker  r.  Parker, 
1  Gray,  409;  Patton  v.  M'Clure,  1 
Mart.  &  Yerg.  333;  Goodloe  v. 
Goodloe,  116  Tenn.  252;  Ridley  v. 
McNairy,  2  Humph.  174;  Robeson 
r.  Hornbaker,  3  N.  J.  Eq.  60;  Win- 
gate  V.  Dail,  2  Har.  &  J.  76;  Elhs 
V.  Ellis,  1  Dev.  Eq.  341;  Albea  v. 
Griffin,  2  Dev.  &  Bat.  Eq.  9;  Allen 
V.  Chambers,  4  Ired.  Eq.  125;  Best 
V.  Gralapp,  69  Neb.  811;  1  Sug.  V. 
&  P.  225,  note  (8th  Am.  ed.). 

2  See  Milliken  v.  Dravo,  67  Pa.  230; 
also  Cramer  i'.  Mooney,  59  N.  J.  Eq. 
164. 


502 


SPECIFIC   PERFORMANCE. 


[part  III. 


It  is  settled  that  going  into  possession  under  the  contract  and 
making  improvements  will  be  sufficient.'  And  in  some  cases 
entry  into  possession  alone  has  been  held  to  be  enough. ^  But 
possession  must  be  taken  under  and  by  virtue  of  the  contract, 
otherwise  it  cannot  avail;  and,  indeed,  as  a  general  rule  anything 
that  is  relied  upon  to  take  the  case  out  of  the  statute  must  be  done 
in  pursuance  of  the  contract,  and  nmst  not  be  referable  to  an- 
other title.^  If  the  vendee  is  already  in  possession  of  the  prop- 
erty, the  continuance  of  this  possession  will  not  be  considered 
a  part  performance  to  take  the  case  out  of  the  statute ;  "*  unless 


1  Freeman  v.  Freeman,  43  N.  Y. 
34;  Casler  v.  Thompson,  4  N.  J.  Eq. 
59;  Smith  v.  Smith,  1  Rich.  Eq.  130; 
Deniston  v.  Hoagland,  67  111.  265; 
West  V.  Bundy,  78  Mo.  407;  Drum 
V.  Stevens,  94  Ind.  181;  Schuey  v. 
Schaeffer,  130  Pa.  18;  Moore  v.  Allen, 
26  Colo.  197;  Sprague  v.  Jessup,  48 
Oreg.  211;  Nunn  v.  Fabian,  L.  R.  1 
Ch.  35;  Williams  v.  Evans,  Id.  19  Eq. 
577;  Barton  v.  Dunlap,  8  Idaho, 
82;  Sutherland  v.  Taintor,  17  Okla. 
427;  West  v.  Ry.  Co.,  49  Oreg.  448; 
Karren  v.  Rainey,  30  Utah,  7 ;  White 
V.  White,  231  111.  298;  Logue  v.  Lan- 
gan,  151  Fed.  Rep.  455.  The  im- 
provements must  be  of  a  permanent 
character.  Peckham  v.  Barker,  8 
R.  I.  17;  Wack  v.  Sorber,  2  Whart. 
387;  Baker  v.  Allison,  186  111.  613; 
Anderson  v.  Schneider,  22  Wash. 
363;  Price  v.  Lloyd,  31  Utah,  87. 

2  Green  v.  Richards,  23  N.  J.  Eq. 
32;  8.  c.  on  appeal.  Id.  539;  Smith 
V.  Underdunck,  1  Sandf.  Ch.  579; 
Dunckel  v.  Dunckel,  141  N.  Y.  427; 
Pugh  V.  Good,  3  W.  &  S.  56;  Moale  v. 
Buchanan,  11  Gill  &  J.  314;  Hart  v. 
Hart,  3  Dcss.  592 ;  .\nderson  v.  Chick, 
1  Bailey  Ch.  118;  Brock  v.  Cook,  3 
Porter,  464;  Waggoner  v.  Speck,  3 
Ham.  292;  Palmer  v.  Richardson,  3 
Strobh.  Eq.  16;  Huntington,  etc.. 
Development  Co.  r.  Thornberg,  46 
W.  Va.  99.  But  see  Moore  v.  Small, 
19  Pa.  461.     Such  possession  must 


be  notorious,  exclusive,  continuous 
and  in  pursuance  of  the  contract. 
Baldwin  v.  Baldwin,  73  Kan.  39. 

3  Mills  I'.  Haywood,  6  Ch.  Div. 
196;  Wright  v.  Pucket,  22  Gratt.  374; 
Robertson  v.  Robertson,  9  Watts,  32, 
42;  Phillips  v.  Thompson,  1  Johns. 
Ch.  131,  149;  Smith  v.  Smith,  1  Rich. 
Eq.  130;  Sanborn  v.  Sanborn,  7  Gray, 
142,  146;  Ham  v.  Goodrich,  33  N.  H. 
38;  Haisten  v.  Savannah,  etc.,  R.  R., 
51  Ga.  199;  Lester  ?'.  Kinne,  37  Conn. 
9,  14;  Dimond  v.  MacFarlane,  11 
Hawaii,  181;  1  Sug.  V.  &  P.  226,  note 
(8th  Am.  ed.).  See  Kaufman  v. 
Cook,  114  111.  11;  Nibert  v.  Baghurst, 
47  N.  J.  Eq.  201;  Hartshorn  v. 
Smart,  67  Kan.  543. 

*  Hatcher  v.  Hatcher,  1  McMullan, 
Ch.  311 ;  Johnston  v.  Glancy,  4  Black. 
94;  Christy  v.  Barnhart,  14  Pa.  260; 
Mahana  v.  Blunt,  20  la.  142;  Wilmer 
V.  Farris,  40  Id.  310.    See,  however, 
Blanchard  v.  McDougal,  6  Wis.  167 
Spalding  v.  Conzelman,  30  Mo.  177 
Jenning    v.    Miller,    48    Oreg.    201 
Morrison   v.    Herrick,    130    111.    631 
Green    v.     Groves,     109     Ind.     519. 
Where   specific   performance   cannot 
be  decreed  the  bill  may  be  retained 
for  the  purpose  of  affording  the  in- 
tended  purchaser   compensation   for 
improvements.      Parkhurst    v.    Van 
Cortlandt,  1  Johns.  Ch.  273;  Phillips 
V.  Thompson,  Id.  131. 


CH.  I.] 


SPECIFIC    PERFORMANCE. 


563 


it  appears  that  this  continuance  is  under  and  by  virtue  of  the 
contract.^ 

But  mere  payment  of  the  purchase-money  is  not  enough, ^ 
unless,  indeed,  owing  to  pecuhar  circumstances  the  purchaser 
cannot  be  restored  to  his  original  position  by  repayment.^ 

When  a  parol  contract  is  entered  into  in  consideration  of  mar- 
riage, the  solemnization  of  the  marriage  is  not  such  a  part  per- 
formance as  will  take  the  case  out  of  the  statute.'*  Making  a  will 
in  pursuance  of  a  parol  agreement,  was  held,  to  he  sufficient  part 
performance  in  a  recent  case.^  So  also  rendering  services  of  a  i)er- 
sonal  or  peculiar  nature.^ 

A  party  seeking  specific  performance  cannot  rely  upon  a  part 
performance  by  the  defendant  to  take  the  case  out  of  the  statute/ 


1  Hodson  V.  Heulahd  [1896],  2  Ch. 
428. 

2Clinan  v.  Cooke,  1  Sch.  &  L.  40; 
Hughes  V.  Morris,  2  De  G.,  M.  &  G. 
356;  Purcell  v.  Miner,  4  Wall.  513; 
Kidder  v.  Barr,  35  N.  H.  235;  Glass 
V.  Hulbert,  102  Mass.  21;  Jones  v. 
Newhall,  115  Id.  244;  Eaton  v.  Whit- 
aker,  18  Conn.  222;  McKee  v.  Phil- 
lips, 9  Watts,  85;  Parker  v.  Wells,  6 
Whart.  153;  Allen's  Estate,  1  W.  & 
S.  383;  Weise's  Appeal,  72  Pa.  351- 
355;  Forrester  v.  Flores,  64  Cal.  24; 
Shipman  v.  Shipman,  65  N.  J.  Eq. 
556;  Underhill  v.  Allen,  18  Ark.  466; 
Lefferson  v.  Dallas,  20  Ohio  St.  74; 
Koenig  v.  Dohm,  209  111.  468;  Mather 
V.  Scoles,  35  Ind.  5;  Neal  v.  Gregory, 
19  Fla.  356;  Peckham  v.  Balch,  49 
Mich.  179;  Townsend  v.  Fenton,  30 
Minn.  528;  1  Sug.  V.  &  P.  229  (Sth 
Am.  ed.);  Green  v.  Groves,  109  Ind. 
519;  Biern  v.  Ray,  49  W.  Va.  128. 
But  in  Iowa,  payment  of  the  pur- 
chase-money is  sufficient  to  take  the 
case  out  of  the  statute.  Fairbrother 
V.  Shaw,  4  la.  570;  Olive  v.  Dough- 
erty, 3  Greene  (Iowa),  371;  Johnston 
V.  Glancy,  4  Blackf.  94.  And  in  Dela- 
ware the  rule  is  the  same.  Houston 
V.  Townsend,  1  Del.  Ch.  416;  Town- 
send  V.  Houston,  1  Harr.  532.  Pay- 
ment of  the  purchase-money  in  full 


and  making  valuable  improvements 
on  land  bought  is  sufficient.  Pem- 
broke V.  Logan,  71  Ark.  364. 

3  Malins  v.  Brown,  4  Comst.  403; 
Everts  v.  Agnes,  4  Wis.  343;  Johnson 
V.  Hubbell,  10  N.  J.  Eq.  332;  Gerber 
V.  Upton,  123  Mich.  605. 

4Caton  V.  Caton,  L.  R.  1  Ch.  137; 
L.  R.  2  H.  L.  127;  Flory  v.  Houck, 
186  Pa.  263,  269,  270;  Russell  v. 
Russell,  60  N.  J.  Eq.  282;  Hunt  v. 
Hunt,  171  N.  Y.  396.  Contra,  Allen 
V.  Moore,  30  Col').  307.  See  Ungley 
V.  Ungley,  4  Ch.  D.  73;  aff'd  in  5 
Id.  887,  where  there  was  also  a  trans- 
fer of  possession  and  specific  per- 
formance was  decreed. 

5  Turnipseed  v.  Sirrine,  57  S.  C. 
559. 

"Svanburg  v.  Fosseen,  75  Minn. 
350;  Bryson  v.  McShane,  48  W.  Va. 
126;  Lothrop  r.  Marble,  12  S.  D.  511; 
McCullom  V.  Mackrell,  13  Id.  262; 
Burns  v.  Smith,  21  Mont.  251;  Pike 
V.  Pike,  121  Mich.  170;  Martin  v. 
Martin,  108  Wis.  284;  Lynn  v.  Hock- 
aday,  162  Mo.  Ill;  White  v.  Poole, 
74  N.  H.  71.  But  not  if  the  services 
are  such  as  are  ordinarily  compen- 
sated for  upon  a  qvantum  meruit. 
Cooper  V.  Colsen,  66  N.  J.  Eq.  328. 

7  Caton  V.  Caton,  nvpra.  See,  also, 
Luckett  V.  Williamson,  37  Mo.  388. 


564  SPECIFIC    PERFORMANCE,  [PART  III. 

The  doctrine  of  part  performance  will  operate  to  prevent  a 
vendee  who  has  gone  into  possession  from  insisting  upon  objec- 
tions to  the  vendor's  title.  A  waiver  of  objections  may  thus  be 
presumed  from  conduct.^  The  relief,  however,  if  obtained  at  all, 
must  be  sought  for  in  equity.  It  will  not  be  given  in  a  court  of 
law. 2  In  some  of  the  states,  however,  there  are  decisions  tending 
to  show  that  there  may  be  a  parol  waiver  of  one  or  more  of  the 
terms  of  a  contract  which  the  statute  requires  to  be  in  writing.' 

386.  When  the  reduction  of  the  contract  to  writing  is 
prevented  by  fraud. 

The  second  class  of  cases  in  which  the  Statute  of  Frauds  can- 
not be  insisted  upon  for  the  purpose  of  defeating  a  parol  con- 
tract as  to  realty  embraces  those  in  which  the  reduction  of  the 
contract  to  writing  has  been  prevented  by  fraud. 

Thus,  if  an  intended  husband,  having  promised  to  reduce  a 
marriage  settlement  to  writing,  fraudulently  prevents  it  from 
being  done,  and  the  marriage  takes  place  in  consequence  of  false 
assurances  and  contrivances,  the  circumstance  that  the  agree- 
ment rests  in  parol  cannot  be  taken  advantage  of  in  resisting  an 
application  for  specific  performance.'' 

This  class  of  cases,  however,  falls  under  the  head  of  actual 
fraud,  and  is  governed  by  the  rules  which  apply  to  that  branch 
of  equitable  jurisdiction.  They  are  noticed  in  this  connection 
simply  in  order  to  illustrate  the  rule  in  equity  which  forbids  the 
Statute  of  Frauds  to  be  used  as  an  instrument  to  defeat  the  right 
to  specific  performance. 

In  cases,  also,  of  Accident  and  Mistake,  the  statute  will  not 
prevent  the  introduction  of  parol  evidence.^ 

387.  When  the  parol  contract  is  admitted  in  the  answer. 

In  the  third  place,  a  case  will  be  taken  out  of  the  statute  when 
the  parol  contract  is  admitted  by  the  defendant  in  his  answer, 
and  the  statute  is  not  therein  insisted  upon  as  a  defence.  In  such 
a  case  there  can  be  no  possibility  of  fraud  or  mistake;  because 

1  Palmer  v.  Richardson,  3  Strobh.  Miller,  4  N.  H.  196;  1  Sug.  V.  &  P. 
Ex.  16.  252  (8th  Am.  ed.). 

2  Goss  V.  Ld.  Nugent,  5  B.  &  Ad.  *  See  Montacute  v.  Maxwell,  1  P. 
58.  Wms.  618;  Story's  Eq.  Jurisp.  §  758; 

^  Stearns  v.  Hall,  9  Cush.  31 ;  Cum-       Wharton's  Evidence,  §  911. 
mings  V.  Arnold,  3  Met.  486;  Buel  v.  s  Johnson  v.  Bragge  [1901],  1  Ch. 

36,  37. 


CH.  I.]  SPECIFIC    PERFORMANCE,  565 

nothing  could  be  stronger  evidence  of  the  truth  and  accuracy  of 
the  plaintiff's  version  of  the  agreement  than  the  written  admis- 
sion by  the  defendant  under  oath.  And  the  statute  having  been 
made  for  the  protection  of  the  defendant,  it  is  perfectly  compe- 
tent for  him  to  waive  its  benefit.^ 

If,  however,  the  defendant  insists  upon  the  statute  as  a  bar, 
the  written  admission  in  his  answer  will  not  avail  to  take  the 
case  out  of  the  statute.^ 

388.  Specific  performance  with  compensation  for  defects. 

It  has  been  stated  above  that  one  of  the  reasons  why  the 
remedy  of  specific  performance  was  introduced  in  equity,  was 
because  at  law  the  plaintiff  is  obliged  to  show  on  his  part  pre- 
cise compliance  with  all  the  terms  of  the  agreement,  whereas 
chancery  would  sometimes  afford  him  relief  although  he  was 
unable  to  prove  this  exact  fulfilment.  It  will  be  proper  now  to 
consider  the  two  methods  in  which  courts  of  equity  grant  this 
indulgence — viz.,  decreeing  performance  with  compensation  for 
defects,  and  giving  time  to  make  a  title  beyond  the  stipulated 
day 

389.  When  the  purchaser  may  be  compelled  to  take. 

And  first  as  to  performance  with  compensation  for  defects. 
It  is  settled  that  immaterial  deficiencies  will  not  deprive  the 
vendor  of  his  right  to  have  the  contract  performed  as  against 
the  vendee — provided  that  the  deficiencies  are  such  as  may  be 
compensated  in  money.  Under  such  circumstances  the  vendee 
may  be  compelled  to  take  the  property,  and  a  suitable  deduction 
will  be  made  in  the  price.' 

iSee  Gunter  v.  Halsey,  Amb.  586;  C.  C.  295;  Brooks  v.  Wheelock,   11 

Harris   v.    Knickerbacker,    5   Wend.  Pick.  439;  Robeson  v.  Hornbaker,  3 

638;  McGowen  v.  West,  7  Mo.  569;  N.   J.   Eq.    60;   Story's   Eq.   Jurisp. 

Smith's    Manual    of    Equity,     252;  §  757. 

Gough  V.  Williamson,  62  N.  J.  Eq.  s  Hepburn  v.  Auld,  5  Cranch,  262; 

526;  Cunningham  v,  Cunningham,  46  King  v.  Bardeau,  6  Johns.  Ch.  38; 

W.  Va.  1;  Craver  v.  Spencer,  40  Fla.  Harbers  v.  Gadsden,  6  Rich.  Eq.  284; 

135;  Pike  V.  Pike,  69  Vt.  535;  Browne  D'Wolf  v.  Pratt,  42  111.   198;  In  re 

on  Stat,  of  Frauds,  §  476;  Wharton's  Fawcett  &  Holmes'  Contract,  42  Ch. 

Evidence,  §  912.  D.  150;  Phinizy  v.  Guernsey,  111  Ga 

2  Walters  v.  Morgan,   2  Coke  Ch.  346;  Seton   v.   Slade,   2   Lead.   Cas. 

369;  Whitbread  v.  Brockhurst,  1  Bro.  Eq.  pp.   11,  33.     The  compensation 

Ch.   416;   Cooth  v.  Jackson,   6  Ves.  may  take  another  shape  than  a  sum 

37;  Thompson  v.  Tod,   1  Pet.  C.  C.  of  money.     Thus,   in  decreeing   the 

385;  Thompson  v.  Jameson,  1  Cranch  specific   performance   of   agreements 


5G0 


SPECIFIC    PERFORMANCE. 


[part  III. 


But  if  the  deficiencies  are  material  and  important,  the  vendee 
will  not  be  compelled  to  take  the  property.'  He  is  entitled  to 
have  what  he  bargained  for;  and  it  would,  obviously,  be  ex- 
tremely unjust  to  force  anything  upon  him  which  he  had  not 
designed  or  contracted  to  buy.  If  there  is  a  failure  in  that  which 
is  an  inducement  to  the  purchase,  he  will  not  be  compelled  to 
take.^ 


390.  When  he  may  elect  to  take ;  limitations  upon  this 
doctrine. 

It  may  sometimes  happen  that  defects  exist  which  render 
the  property  less  valuable  than  the  contract-price;  but  which, 
nevertheless,  may  not  be  of  so  vital  a  character  as  to  induce  the 
purchaser  entirely  to  throw  up  his  bargain.  In  such  a  case  the 
equity  of  specific  performance  with  compensation  comes  into 
play  for  the  benefit  of  the  vendee.  He  is  entitled  to  have  the 
agreement  carried  out,  and  yet  at  the  same  time  to  have  an  abate- 
ment or  allowance  made  by  reason  of  the  defects.^  Such  a  relief 
cannot,  it  is  manifest,  be  obtained  at  law ;  and,  therefore,  is  an  ad- 
ditional illustration  of  the  advantages  of  this  equitable  remedy.'' 


for  the  partition  of  coal  mines,  an  al- 
lowance of  so  much  coal  may  be 
made.  Young  v.  Frost,  1  Md.  377; 
King  V.  Ruckman,  20  N.  J.  Eq.  316; 
Coleman's  Appeal,  62  Pa.  252. 

1  Whittemore  v.  Whittemore,  L.  R. 
8  Eq.  603;  Phinizy  v.  Guernsey,  111 
Ga.  346. 

2  Peers  v.  Lambert,  7  Beav.  546; 
Rugge  V.  Ellis,  1  Dess.  160;  Wain- 
wright  V.  Read,  Id.  573;  Cordingley 
V.  Cheesebrough,  3  Giff.  496;  Stod- 
dart  V.  Smith,  5  Binn.  355;  Marvin 
V.  Bennett,  8  Paige  Ch.  312;  Phinizy 
V.  Guernsey,  111  Ga.  346;  1  Sug.  V. 
&  P.  479  (8th  .\m.  ed.). 

3  Thomas  v.  During,  1  Keen,  729; 
Keator  v.  Brown,  57  N.  J.  Eq.  600; 
Melick  V.  Cross,  62  Id.  545;  Powell 
V.  Elliot,  L.  R.  10  Ch.  424  (where  a 
bill  for  specific  performance  was 
filed  by  the  vendor,  and  a  cross  bill 
for  rescission  by  the  vendee,  and  the 
decree  was  for  specific  performance 
with  an  allowance   for  misrepresen- 


tations as  to  value) ;  Wheatley  v. 
Slade,  4  Sim.  126;  Graham  v.  OHver, 
3  Beav.  124;  Nelthorpe  v.  Holgate,  1 
Coll.  203;  Barker  v.  Cox,  4  Ch.  D. 
464;  Stockton  v.  Union  Oil  Co.,  4 
W.  Va.  273;  Townsend  v.  Vander- 
werker,  160  U.  S.  171;  Lanyon  v. 
Chesney,  186  Mo.  540;  McCowen  v. 
Pew,  147  Cal.  299;  Cowan  v.  Kane, 
211  111.  572;  Kuhn  v.  Eppstein,  219 
111.  154;  Tobin  v.  Larkin,  183  Mass. 
389;  Melin  v.  Woolley,  103  Minn. 
498;  Garrett  v.  Goff,  61  W.  Va.  221. 
*  See  Johnson  v.  Johnson,  3  Bos. 
&  Pul.  162.  See,  also,  Denton  v. 
Stewart,  1  Cox  Ch.  258;  .Andrews 
V.  Brown,  3  Cush.  130;  Harrison  v.- 
Deramus,  33  Ala.  463;  Bell  v. 
Thompson,  34  Id.  633;  Lee  v.  Howe, 
27  Mo.  521,  Smith  v.  Fly,  24  Tex. 
345;  Phillips  v.  Thompson,  1  Johns. 
Ch.  149;  Parkhurst  v.  Van  Cortlandt, 
Id.  273;  Scott  v.  Billgerry,  40  Miss. 
119,  Morss  V.  Elmendorf,  11  Paige 
Ch.  277. 


CH.  I.]  SPECIFIC    PERFORMANCE.  567 

There  must,  however,  be  some  Umits  to  this  right  of  the  vendee 
to  elect  to  have  the  contract  performed  with  compensation  for 
defects;  because  in  some  histances  its  exercise  would  work  great 
injustice  to  the  vendor.  Thus  a  seller  could  not,  for  example, 
at  the  election  of  the  purchaser,  be  deprived  of  his  mansion-house 
and  park  to  which  he  could  make  a  good  title,  while  a  large  ad- 
joining estate,  held  and  sold  with  it,  would  be  left  on  his  hands 
with  a  proclaimed  bad  title. ^ 

Nor  can  a  vendor  be  required  to  convey  a  different  parcel  of 
land  from  that  agreed  to  be  convey(>d.- 

The  right  both  of  the  vendor  and  vendee  cannot  be  exercised 
unless  the  defect  is  one  which  is  capable  of  being  measured  by 
a  pecuniary  standard;  in  other  words,  capable  of  compensation. 
The  compensation  nmst  not  be  a  mere  matter  of  arbitrary  dam- 
ages, or  of  indemnity  for  future  risk.* 

391.  Time  to  make  out  a  title  beyond  the  day. 

The  second  of  the  methods  in  which  a  court  of  equity  grants 
indulgence  to  a  party  who  has  been  unable  to  fulfil  exactly  his 
part  of  an  agreement,  and  yet  seeks  the  aid  of  the  court  to  have 
it  specifically  enforced,  is  by  giving  time  to  make  out  a  title  be- 
yond the  day  which  the  contract  specifies.  This  is  done  in  pur- 
suance of  the  maxim  that  time  is  not  ordinarily  of  the  essence  of 
the  contract  in  equity ;  "*  although  it  may  sometimes  become  so. 
What  is  meant  by  this  maxim  and  by  its  qualification  is  this: 
A  court  of  equity  will  relieve  against  delay  an<l  enforce  specific 
performance  notwithstanding  a  failure  to  keep  the  dates  assigned 
by  the  contract,  either  for  the  completion,  or  for  the  steps 
towards  completion,  if  it  can  do  justice  between  the  parties,  and 
if  there  is  nothing  in  the  express  stipulations  between  the  parties, 
the  nature  of  the  property,  or  the  surrounding  circumstances 
which  would  make  it  inequitable  to  interfere  with  and  modify  the 
legal  right.  This  is  what  is  meant,  and  all  that  is  meant  when  it 
is  said  that  in  equity  time  is  not  of  the  essence  of  the  contract.^ 

1  1  Sug.  V.  &  P.  316  (480,  8th  Am.  Fort,  4  Taun.  334;  Steer  v.  Crowley, 
ed.).  14  C.  B.  (n.  s.)  337. 

2  Id.     See  Castle  v.  Wilkinson,  L.  ^  xilley  v.  Thomas,    L.    R.   3  Ch. 
R.  5  Ch.  534.  67.     In  Hepburn  v.  Auld,  5  Cranch, 

3  Adarns's  Eq.  91.  262,  Brashier  v.  C.ratz,  6  Wheat.  528, 
*  Time  is,  in  general,  of  the  essence       and  Bank  of  Columbia  v.  Hagner,  1 

uf   the   contract   at   law.     Wilde   v.      Pet.  455,  it  was  held  that,  in  equity, 


508 


SPECIFIC    PERFORMANCE. 


[part  III. 


392.  Due  diligence  required. 

An  example  of  the  rule  now  under  consideration  is  where  a 
vendor  has  undertaken  to  make  a  title  on  a  certain  day,  and  has 
failed  to  do  so  by  reason  of  some  defect  in  the  title,  which  de- 
fect, however,  is  susceptible  of  being  cured.  It  will  be  observed 
that  the  rule,  as  thus  stated,  does  not  apply  to  those  cases  in 
which  the  delay  on  the  part  of  the  vendor  is  due,  not  to  any  de- 
fects in  his  title  which  he  desires  time  to  remedy,  but  to  his  own 
carelessness  and  laches.  Due  diligence  is  recjuired  on  both  sides. ^ 
A  vendor  cannot  have  specific  performance  if  he  has  been  urged 
by  the  purchaser  to  take  steps,  but  has  not  done  so.'  But  where 
the  delay  is  not  due  to  the  laches  of  the  seller,  but  to  defects  in  the 
title  which  may  be  cured,  a  bill  for  specific  performance  may  be 
maintained,  for  it  is  sufficient  if  a  party  entering  into  articles  to 
sell  has  a  good  title  at  the  time  of  the  decree.^   The  court  rectifies 


time  was  not  of  the  essence  of  a  con- 
tract. See,  also,  Remington  v.  Irwin, 
14  Pa.  143;  Tiernan  v.  Roland,  15 
Id.  429;  Bryson  v.  Peak,  8  Ired.  Eq. 
310;  Glover  v.  Fisher,  11  111.  666; 
Dikeman  v.  Sunday  Creek  Coal  Co., 
184  111.  546;  Reid  v.  Mix,  63  Kan. 
745.  But  in  Goldsmith  v.  Guild,  10 
Allen,  239;  Telegraphone  Corp.  v. 
Telegraphone  Co.,  103  Me.  444,  the 
court  did  not  approve  of  the  doctrine 
See  1  Sug.  V.  &  P.  411  (8th  Am.  ed.) 
1  Merritt  v.  Brown,  21  N.  J.  Eq 
401;  Johns  v.  Norris,  22  Id.  102 
Davison  v.  Davis,  125  U.  S.  95; 
Dubois  V.  Baum,  46  Pa.  537;  Cureton 
V.  Gilmore,  3  S.  C.  (n.  s.)  46;  East- 
man V.  Plumer,  46  N.  H.  464,  479; 
Rogers  v.  Saunders,  16  Me.  92; 
Wilkins  v.  Evans,  1  Del.  Ch.  156  (a 
case  in  which  delay  on  the  part  of  the 
purchaser  was  excused);  Benedict  v. 
Lynch,  1  Johns.  Ch.  375;  Leaird  v. 
Smith,  44  N.  Y.  618;  1  Sug.  V.  & 
P.  261.  Specific  performance  of  a 
contract  for  the  sale  of  real  estate  will 
ordinarily  be  decreed  even  though 
the  purchase  money  was  not  paid 
or  tendered  at  the  exact  time  fixed 
by  the  contract,  when  the  party 
seeking  the  performance   has  acted 


in  good  faith  and  with  reasonable 
diUgence,  unless  there  has  been  such 
a  change  of  circumstances  affecting 
the  equity  of  the  parties' or  the  justice 
of  the  contract  as  to  make  it  in- 
equitable that  it  should  be  enforced. 
Wright  V.  Astoria  Co.,  45  Oreg. 
224. 

2  It  is  not  necessary  that  a  demand 
for  a  deed  should  precede  a  bill  for 
the  specific  performance  of  a  con- 
tract to  convey.  This  results  from 
the  distinction  between  a  suit  in 
equity  for  specific  performance,  and 
an  action  at  law  for  non-performance, 
namely,  that  in  the  latter  the  right 
of  action  grows  out  of  a  breach  of 
the  contract,  and  a  breach  must 
exist  before  the  commencement  of 
the  action,  while  in  the  former  the 
contract  itself,  and  not  the  breach 
of  it,  gives  the  action.  Bruce  v 
Tilson,  25  N.  Y.  194;  Welland  v 
Huber,  8  Nev.  207. 

3  See  Dresel  v.  Jordan,  104  Mass 
415;  Barnard  v.  Lee,  97  Id.  92 
Haffey  v.  Lynch,  143  N.  Y.  241 
Collins  V.  Park,  93  Ky.  6;  Spencer  v 
Sandusky,  46  W.  Va.  582;  Provident 
Trust  Co.  V.  Mcintosh,  68  Kan.  452 
Harnman  v.  Tyndale,  184  Mass.  534 


H.  ].]        \  SPECIFIC    PERFORMANCE.  569 


the  incidental  delay  by  giving  the  intermediate  rents  to  the  pur- 
chaser, and  interest  on  the  purchase-money  to  the  vendor.  And 
where  both  parties  have  treated  time  as  not  of  the  essence,  a 
contract  may  be  enforced,  ahhough  several  years  have  elapsed. ^ 
Such,  then,  is  the  general  rule.  It  is  subject  to  the  qualifica- 
tion that  time  may  be  made  the  essence  of  a  contract  by  express 
stipulation  of  the  parties,  or  by  presumption  growing  out  of  the 
nature  of  the  property,  or  by  surrounding  circumstances.^ 

393.  Rule  altered  by  express  stipulations,  or  by  presump- 
tions growing  out  of  the  nature  of  the  contract. 

As  to  "express  stipulations"  nothing  need  be  said.  It  is  per- 
fectly clear  that  parties  may  stipulate  that  time  shall  be  essential, 
and  that  when  such  a  stipulation  exists  it  ought  to  be  enforced;  ^ 
save,  of  course,  where  the  party  insisting  upon  the  observance 
of  the  "  time  clause"  has  himself  caused  the  delay  '*  or  has  waived 
his  right  to  insist  by  recognizing  the  existence  of  the  contract 
after  a  forfeiture  has  occuned.^ 

It  is  also  clear  that  the  nature  of  the  subject-matter  of  the  sale 
may  render  time  of  the  essence  of  the  contract.  The  case  usually 
put  is  that  of  the  sale  of  a  reversion.  Trades  or  manufactories 
furnish  another  illustration.  The  case  of  mines  is  still  another 
example;  for  the  whole  purpose  of  the  purchase  may  be  the 
chance  of  an  early  development  of  the  mine,  and  a  speedy  in- 
troduction of  its  products  into  the  market.® 

1  Robinson  v.  Trufant,  97  Mich.  Machold  v.  Farnan,  14  Idaho,  258. 
410;  Cleaver  v.  Taylor,  39  C.  C.  A.  See  Ebert  v.  Arends,  190  111.  221,  for 
338;  Taylor  v.   Longworth,    14   Pet.       an  exception  to  the  rule. 

172.  *  Vankirk    v.    Patterson,   201    Pa. 

2  See  McLaughlin  v.  Equitable  As-      90. 

surance  Society,  38  Neb.  725;  Dike-  s  Scannell  v.  American  Soda  Foun- 

man  v.  Sunday  Creek  Coal  Co.,  184  tain  Co.,  161  Mo.  606. 

111.  546.  *  Macbryde  v.   Weekes,   22   Beav. 

3 See  Barnard  v.  Lee,  97  Mass.  94;  533;  Parker  v.  Frith,  1  Sim.  &  Stu. 

Patching.  Lamborn,  31  Pa.  314;  Ives  199,  n.;  Day  v.  Luhke,  L.  R.  5  Eq. 

V.  Armstrong,  5  R.  I.  567;  Stow  v.  336;  Claydon  v.  Green,  L.  R.  3  C.  P. 

Russell,  36  111.  18;  Heckard  v.  Sayre,  511;  Cowles  v.  Gale,  L.  R.  7  Ch.  12; 

34   Id.    142;  King  i'.   Ruckman,   20  Newman    v.    Rogers,    4    Bro.    C.    C. 

N.  J.  Eq.  316;  21  Id.  599;  Webb  v.  391;  Settle  v.  Winters,  2  Idaho,  215; 

Hughes,  L.  R.  10  Eq.  281 ;  Bennett  r.  Durant    r.    Comegys,     3    Id.     204; 

Hyde,  92  Cal.  131;  Pier  v.  Lee,   14  Adams's  Equity,  88;  1  Sug.  V.  &  P. 

S.    D.    600;    Whiteman    v.    Perkins,  403  (8th  Am.  ed.).     See,  also,  Land 

56  Neb.  181;  Skeen  v.  Patterson,  180  &  Water  Co.  v.  Sup.  Court  of  Fresno 

111.  289;  Jewet  v.  Black,  60  Neb.  173;  County,  93  Cal.  139. 


570  SPECIFIC    PERFORMANCE.  [PART  III. 

394.  Surrounding  circumstances. 

As  to  the  "surrounding  circumstances"  which  may  rendei 
time  of  the  essence  of  the  contract,  they  must,  of  course,  de- 
pend upon  the  facts  of  each  particular  case;  such  as  whether 
the  value  of  the  property  has  greatly  diminished,  whether  the 
vendee  has  bought  to  sell  again,  and  so  forth. ^  Indeed,  in  this 
country,  the  fact  that  land  bears  a  much  more  commercial 
character  than  it  does  in  England,  is  subject  to  more  fluctuations, 
and  has  more  of  a  speculative  value,  has  led  to  not  a  few  expres- 
sions of  judicial  ojjinion  that  time  ought,  as  a  general  rule,  to  be 
considered  as  of  the  essence  of  a  contract.'  But,  perhaps,  the 
safest  statement  of  the  law  is  to  say  that  the  general  rule  is  the 
same  in  the  United  States  as  in  England,  but  that  exceptions, 
growing  out  of  the  circumstances  of  the  individual  transactions, 
are  more  numerous,  and  are  looked  upon  with  more  favor. 

It  may  be  added  that,  under  certain  circumstances,  time  may 
bv'  made  the  essence  of  a  contract  by  notice  given  and  by  tender 
i,f  performance  and  demand,  although  not  originally  made  so 
by  the  terms  of  the  agreemeiU .  "• 

395.  Compensation.     Sir  Ihujlt,  C'air/is'^  Arf. 

It  was  stated  above  that  the  efficiency  of  the  English  courts 
of  equity  in  granting  specific  relief  has  been  increased  by  the 
power  conferred  upon  them  of  giving  damages.  This  is  done 
by  virtue  of  the  Statute  21  and  22  Vict.,  c.  27,  commonly  known 
as  Sir  Hugh  Cairns's  Act,  which  provides  that  the  courts  may, 
either  in  addition  to,  or  in  substitution  for  the  relief  which  is 
prayed,  grant  that  relief  which  would  otherwise  be  proper  to 
be  granted  by  another  court — i.  e.,  award  damages. 

Before  this  act  the  law  had  been  the  other  way.  If  a  purchaser 
had  recourse  to  equity,  and  it  appeared  that  the  vendor  had 
since  the  filing  of  the  bill  sokl  the  estate  to  another  person,  the 
court  could  not  give  the  complainant  damages.  But  if  pending  a 
suit  for  specific  performance  the  seller  had  disposed  of  part  of  the 
projj(!rty — e.  g.,  stone  in  a  quarry — the  court  would  take  care  that 
the  purchaser  had  full  compensation  in  damages.^    The  general 

1  McKay  v.  Carrington,  1  McLean,  Guild,  10  Id.  239;  1  Sug.  V.  &  P. 
50.  411  (Sth  Am.  ed.),  note. 

2  See  dissenting  opinion  of  Mr.  Jus-  ^  \.sia  v.  Hiser,  38  Fla.  71 ;  Roberts 
tice  Livingston  in  Hepburn  v.  Auld,  5  v.  Yaw,  62  Kan.  43. 

Cranch,  279.    See,  also,  Richmond  v.  *  1   Sug.   V.    &    P.   350    (8th   .\m. 

Gray,  3  Allen,  30,  31;  Cioldsmith  v.       ed.). 


CH.  I.] 


SPECIFIC  PERFORMANCE. 


571 


rule  in  ihe  United  States  is  the  same;  but  courts  have,  in  some 
instances,  inchned  to  favor  the  right  to  give  damages,  and  to  re- 
tain the  bill  to  that  eiid.^  But  in  England,  by  the  act  just  cited, 
damages  may  be  given,  and  the  amount  thereof  assessed  by  a 
jury.^  Damages,  however,  will  not  be  given  in  a  case  in  which  a 
bill  for  specific  performance  would  not  be  entertained ;  for  to  d(j 
so  would  be  simply  to  turn  the  equitable  remedy  into  a  common- 
law  action.^ 

396.  Doctrine  in  tiie  United  States. 

In  some  of  the  United  States,  either  in  obedience  to  statutory 
enactments,  or  by  virtue  of  a  common  law  peculiar  to  the  state, 
the  remedy  of  specific  performance  may  be  enforced  through  the 
medium  of  a  common-law  action."*  This  is  especially  the  case  in 
Pennsylvania,  where  the  action  of  ejectment  has  been,  and  still 
is,  a  favorite  method  of  compelling  either  a  vendor  or  a  vendee 
to  fulfil  his  agreement.  In  the  former  case,  the  purchaser  re- 
covers the  verdict  conditioned  upon  the  payment  of  the  purchase- 
money  by  th'3  plaintiff;  in  the  latter,  the  seller  has  a  verdict, 
which  is  to  be  released  upon  the  payment  of  the  price  by  the 
buyer.  Certain  rules  have  been  thrown  around  this  species  of 
action,  growing  out  of  the  fact  that  it  is  one  originally  of  conmion- 
law  origin,  and,  therefore,  amenable  to  strict  common-law  rules^ 
e.  g.,  tender  of  a  deed  before  bringing  an  action — which  (it 
must  be  remembered)  do  not  apply  when  relief  is  sought  by  a  bill 
of  specific  performance.^ 

397,  Parties  compelled  to  make  good  their  representations. 

Before  leaving  the  subject  of  specific  performance,  it  may  be 


1  See  Phillip  v.  Thompson,  1  Johns. 
Ch.  131;  Hatch  v.  Cobb,  4  Id.  559; 
Kempshall  v.  Stone,  5  Id.  193;  Jervis 
V.  Smith,  1  Hoff.  Ch.  470;  Murtha 
V.  Curley,  90  N.  Y.  372;  Baily  v. 
Hornthal,  154  Id.  648-660;  Woodman 
V.  Freeman,  25  Me.  531;  Nelson  v. 
Hagerstown  Bank,  27  Md.  76;  Nagle 
V.  Newton,  22  Cratt.  814;  May  v. 
LeClaire,  11  Wall.  236;  Massons's 
Appeal,  70  Pa.  26;  Reeder  v.  Trul- 
linger,  151  Id.  287;  Jackson  v.  Ste- 
venson, 156  Mass.  496;  Peabody  v. 
Tarbell,  2  Cush.  226;  Andrews  v. 
Brown,  3  Id.  131;  Cathcart  v.  Rob- 


inson, 5  Pet.  278;  Holland  v.  Ander- 
son, 38  Mo.  55;  Mullen  v.  McKin,  22 
Colo.  468;  Fry  on  Spec.  Perf.  449  (2d 
Am.  ed.);  1  Story's  Eq.  §§  780,  788; 
post,  Chap.  III. 

2  Or,  now,  by  the  court,  Jaques  v. 
Millar,  6  Ch.  Div.  153. 

3  See  Welsh  v.  Bayaud,  21  N.  J.  Eq. 
186;  Campbell  v.  Rust,  85  Va.  653; 
Mack  V.  Mcintosh,  181  111.  633; 
Farson  v.  Fogg,  205  Id.  326;  1  Sug. 
V.  &  P.  353  (8th  Am.  ed.). 

*See  Weber  v.  Marshall,   19  Cal. 
452;  Fisher  v.  Moolick,  13  Wis.  321. 
s  See  ante,  p.  568,  note  2. 


'u2  SPECIFIC    PERFORMANCE.  [PART   III. 

well  to  notice  the  fact  that  persons  may,  in  some  cases,  be  com- 
pelled specifically  to  perform  promises  or  make  good  representa- 
tions upon  the  faith  of  which  others  have  acted.  This  subject, 
however,  has  been  already  noticed  under  the  head  of  Fraud. 

398.  Enforcing  negative  covenants. 

It  may,  also,  be  observed  that  while  a  court  of  equity  will 
not  ordinarily  attempt  to  enforce  covenants  which  cannot  be 
carried  out  by  the  machinery  of  the  court — e.  g.,  a  covenant  by 
a  singer  to  sing,  or  an  actor  to  perform — it  may,  nevertheless 
practically  attain  the  same  end  by  enjoining  the  party  from  a 
breach  of  his  negative  covenant,  viz.,  by  preventing  him  from 
performing  elsewhere.  This  exercise  of  the  power  of  a  chancellor, 
however,  falls  more  properly  under  the  head  of  Injunctions, 
where  it  will,  therefore,  be  considered. 


CH.  II.l 


INJUNCTIONS. 


573 


CHAPTER  II. 


INJUNCTIONS. 


SECTION  I. 


GENERAL  NATURE  OF  INJUNCTIONS;  INJUNCTIONS  TO  RESTRAIN 
INFRINGEMENT  OF  EQUITABLE  RIGHTS;  AND  HEREIN  OF  IN- 
JUNCTIONS TO  RESTRAIN  PROCEEDINGS  AT  LAW;  OF  BILLS  OF 
PEACE;   AND    OF   BILLS   OF   INTERPLEADER. 


399.  Definition  of  an  injunction. 

400.  Injunctions  either  mandatory  or 

prohibitory;    mandatory    in- 
junctions. 

401.  Prohibitory    injunctions. 

402.  Character  of  the  equitable  rem- 

edy by  injunction. 

403.  Classification  of  injunctions;  in- 

terlocutory and  perpetual. 

Ex  parte,  or  at  the  hearing. 

Common,  or  special. 

General  division  of  the  subject 
of  injunctions. 

Injunctions  to  restrain  proceed- 
ings at  law;  Earl  of  Oxford's 
Case. 

Not  in  the  nature  of  Writs  of 
Prohibition. 

General  nature  of  this  jurisdic- 
tion. 

410.  General  extent  of  this  jurisdic- 

tion;    equitable     titles     pro- 
tected . 

411.  Equitable  rights  protected. 

412.  Equitable   remedies   assisted. 

413.  Injunctions    to    prevent    vexa- 

tious litigation;    election  be- 
tween remedies. 


404. 
405. 
406. 

407. 


408. 


409. 


414.  Injunctions  after  the  court  has 

assumed     jurisdiction     of     a 
cause. 

415.  Bills  of  Peace,  two  classes;  as- 

sertion of  a  common  right. 

416.  Sheffield  Water  Works  v.    Yeo- 

mans. 

417.  General    rules    as    to    Bills    of 

Peace     of     the     first     class; 
Phillips  V.  Hudson. 

418.  Bills   of    Peace   of  the    second 

class. 

419.  Bills  of  Interpleader. 

420.  Bills   must   show    title   in    two 

claimants. 

421.  Complainants    must    claim    no 

interest. 

422.  Debt  or  duty  must  be  the  same. 

423.  Injunctions  in  aid   of  proceed- 

ings in  Bankruptcy. 

424.  In  what  courts  proceedings  will 

be  restrained. 

425.  Injunctions   in   cases   of   trusts 

and  mortgages. 

426.  Injunctions    between    partners. 

427.  Restraint  of  disclosure  of  confi- 

dential communications. 


399.  Deflnitioii  of  an  iii.jiinction. 

An  injunction  in  its  ordinary  sense  is  a  command,  and  this 


574  INJUNCTIONS.  [part  III. 

command  may  be  either  to  do  or  to  refrain  from  doing  some  par- 
ticular thing.* 

An  injunction  in  its  legal  sense  is  a  writ  remedial,  issuing  by 
order  of  a  court  of  equity,^  and  commanding  a  defendant  to  per- 
form some  act,  or  restraining  a  defendant  from  the  commission 
or  continuance  of  some  act.^ 

400.  Injuiictioiis  either  mandatory  or  prohibitory  ;  man- 
datory injunctions. 

An  injunction  may,  therefore,  be  said  to  be  either  mandatory 
or  prohibitory.  A  mandatory  injunction  is  one  that  compels  the 
defendant  to  restore  things  to  their  former  condition,  and  virtu- 
ally directs  him  to  perform  an  act.'*  This  jurisdiction  of  the 
court  to  issue  such  a  writ  has  been  questioned ;  ^  but  it  is  now 
established  beyond  doubt. ^ 

"This  court,"  said  Lord  Justice  Cotton,  in  Loog  v.  Bean,'^ 
"when  it  sees  that  a  wrong  is  committed,  has  a  right  at  once  to 
put  an  end  to  it,  and  has  no  hesitation  in  doing  so  by  a  mandatory 
injunction,  if  it  is  necessary  for  the  purpose." 

The  form  of  the  order,  however,  was  not,  under  the  old  prac- 
tice, direct  in  its  terms;  but  the  end  was  reached  by  a  writ  ap- 
parently prohibitory.  Thus  an  injunction  that  a  defendant 
should  deliver  up  books  and  papers  in  his  possession  has  been 
issued  in  the  following  words:  "Let  an  injunction  be  awarded 

1  Every  injunction  contemplates  common  law  in  the  exercise  of  equi^ 
the  enforcement,  as  against  the  party      table  jurisdiction. 

enjoined,   of   a   rule   of   conduct   for  3  Joyce  on  Injunctions,  1;  Hilliard 

the  future  as  to  the  wrongs  to  which  on  Injunctions,  Chap.  I.,  §  1. 

the  injunction  relates,  and  a  court  *  Joyce  on  Injunctions,  1309,  1310. 

of  equity  may  extend  an  injunction  As  to  the  right  of  a  court  of  equity  to 

so  as  to  restrain  the  defendants  from  compel  the  restoration  of  property  to 

dealing  not  only  in  non-transferable  its   original    condition,    see    note    to 

tickets  already  issued  by  complain-  Henry  r.  Koch,  22  Am.  Law  Reg. 

ant,  but  also  in  all  tickets  of  a  sim-  394-403. 

ilar  nature  which  shall  be  issued  in  5  Blakemore  r.  Glamorganshire  Ca- 

the  future;  and  the  issuing  of  such  nal  Navigation,  1  Myl.  &  K.  184. 

an   injimction   does   not   amount   to  «  Robinson  v.  Lord  Byron.  1  Bro.  C. 

an  exercise  of  legislative,  as  distinct  C.  558;  Great  North  of  England  Rail- 

from  judicial,  power  and  a  denial  of  v/ay  Co.  v.  Clarence  Railway  Co.,  1 

due  process  of  law.     Bitterman   v.  Coll.  505;  Hervey  v.  Smith,  1  K.  &  J. 

Louisville   &    Nashville   R.    R.,    207  392;    Att.-Gen.   v.   Borough  of    Bir- 

U.  S.  205.                   ,  mingham,  4  K.  &  J.  547;  Kerr  on  In- 

2  And  in  some  cases  by  courts  of  junctions,  230. 

7  26  Ch.  D.  314. 


CH.  11.] 


INJUNCTIONS. 


i)tO 


to  restrain  the  defendant  H.  from  detaining  and  keeping  pos- 
session of  the  books,  deeds,  documents  and  papers  removed, 
as  mentioned  in  the  plaintiff's  affidavit  by  the  said  defendant, 
or  by  his  order,  from  the  chambers  occupied  by  the  plaintiff,  for 
retaining  which  no  written  authority  has  been  produced  by  the 
defendant;  and  from  permitting  the  same,  or  any,  or  either  of 
them  to  remain  away  from  the  office  of  the  plaintiff,  or  from 
parting  with  the  same  to  any  person  or  persons,  other  than  the 
plaintiff."  ^  This  order,  it  will  be  observed,  is  in  terms  a  restrain- 
insi  order;  but  in  effect  it  is  a  conmiand  to  the  defendant  to  de- 
liver  up  the  books  and  papers.  But  under  the  modern  practice 
the  better  form,  perhaps,  is  that  the  decree  should  be  not  only 
in  effect,  but. in  terms,  mandatory.  Thus,  in  the  case  of  The 
Attorney  General  of  New  Jersey  v.  The  Central  Railroad  of  New- 
Jersey,^  the  language  of  the  directions  for  the  decree  for  the  pre- 
liminary injunction  was  as  follows:  "That  the  defendants  do 
desist  and  refrain  from  further  performing  and  carrying  into 
effect  the  lease  and  tripartite  agreement,  and  that  the  P.  com- 
pany and  the  R.  company  do  desist  and  refrain  from  continuing 
to  control  the  road  of  the  C.  company,  and  that  the  C.  company 
do  desist  and  refrain  from  jx'rmitting  the  P.  company  and  the  R. 
company  to  operate  its  road,  and  that  the  C.  company  do  again 
resume  control  of  all  its  property  and  franchises  and  performance 
of  all  its  corporate  duties."  It  will  l)e  noted  that  the  last  of  these 
directions  is  distinctly  mandatory  in  its  terms;  and  there  would 
seem  to  be  no  good  reason  why  this  direct  form  of  decree  should 
not  be  used.^ 

Many  occasions  may  arise  which  render  a  mandatory  injunc- 
tion necessary.  Thus  a  party  who  has  diverted  water  from  its 
])ropcr  channel  may  be  compelled  by  mandatory  injunction  to 
restore  it.^  So  a  mandatory  injunction  issues  to  remove  a  nui- 
sance;-'^ to  compel  the  acceptance  of  freight  by  a  common  car- 


1  Joyce  on  Injunctions,  1310.  kScc 
Wellington  v.  Railroad  Co.,  107  Mas.s. 
i'82,  and  Manhattan  Mfg.  Co.  r. 
:,ew  Jersey  Sto^k  Yard  Co.,  23  N.  J. 
Eq.  166;.  Sedalia  Brew.  Co.  r.  S.  W. 
W.  (^o.,  34  Mo.  App.  49. 

2  50  N.  J.  Eq.  52,  489.  See,  also, 
Hall's  Appeal,  112  Pa.  42. 

3  See,  also,  Hall's  Appeal,  112  Pa. 
55. 


4  Corning  v.  Troy  Iron  Co.,  40  N. 
Y.  191 ;  Lane  r.  Newdigatc,  10  Ves. 
192;  Storer  v.  Great  Western  Rail- 
way Co.,  2  Y.  &  C.  Ch.  48;  Cooke  v. 
Chilcott,  3  Ch.  D.  694;  Coodson  v. 
Richardson,  L.  R.  9  Ch.  221;  McCol- 
loin  r.  Morrison,  14  Fla.  414;  Green 
V.  Canny,  137  Mass.  64. 

5  dale  V.  Abbott,  8  Jur.  (n.  s.)  987; 
Hervey  v.  Smith,  1  K.  &  J.  392;  Van 


576 


INJUNCTIONS. 


[part  III. 


ricr ; '  to  prevent  the  continuance  of  trespasses  for  which  there  is 
no  adequate  legal  remedy,  ^  and  to  compel  the  defendant  to  de- 
liver up  the  possession  of  real  estate  which  had  been  adjudged  to 


Bergen  v.  Van  Bergen,  2  Johns.  Ch. 
272;  State  of  Penna.  v.  Wheeling 
Bridge  Co.,  13  How.  518.  But  not 
where  peculiar  hardship  results  to 
the  defendant.  As  an  example  of 
this  a  complainant,  the  owner  of  a 
farm,  which  he  rented,  situated  in 
Deer  Lodge  Valley,  Montana,  brought 
suit  to  enjoin  the  maintenance  and 
operation  by  defendants  of  the 
Washoe  copper  smelter,  on  the  edge 
of  the  valley,  on  the  ground  that  the 
fumes  and  the  arsenic  precipitated 
from  the  smoke  from  the  smelter 
injured  the  crops  and  forage  on  the 
farm  and  poisoned  the  stock  thereon, 
as  well  as  on  the  other  farms  in  the 
valley,  and  made  it  a  public  nui- 
sance. The  suit  was  in  reality 
brought  as  a  test  case  on  behalf  of  a 
large  number  of  farmers  who  were 
joined  in  an  association.  The  evi- 
dence showed  that  some  injury  had 
resulted  to  complainant's  and  other 
farms  in  the  valley,  within  the  so- 
called  "smoke  zone,"  but  that  it  had 
been  lessened  to  a  large  extent  by  a 
reconstruction  of  the  plant  some  two 
years  prior  to  the  suit  at  large  ex- 
pense, and  that  since  that  time  the 
injury  to  farms  in  the  valley  had  not 
been  so  .serious  as  to  render  farming 
and  stock  raising  thereon  unprofi- 
table. The  smelter  was  built  at  a 
cost  of  nearly  S10,000,000,  and 
treated  about  7,000  tons  of  ore  per 
day,  being  practically  all  of  that 
produced  in  the  Butte  district,  and 
its  production  of  copper  was  from 
17  to  20  per  cent  of  that  in  the  Uni- 
ted States.  The  operation  of  the 
smelter  and  the  mines  tributary 
thereto  constituted  one  of  the  chief 
industries  of  the  state,  on  which  a 


large  part  of  the  population  of  Butte 
and  Anaconda  and  the  farms  in  the 
vicinity  were  dependent  for  a  liveli- 
hood. It  appeared  that  no  better 
location  for  the  smelter,  if  as  good, 
could  be  found  elsewhere,  and  that  it 
was  essential  to  the  successful  op- 
eration of  the  mines;  and  it  also  ap- 
peared that  the  result  of  granting  an 
injunction  as  prayed  would  be  to 
put  the  complainant  and  other 
landowners  and  farmers  in  a  position 
where  they  can  compel  the  defend- 
ants either  to  buy  all  the  lands  of 
the  farmers  at  their  own  price  or 
lose  their  own  vast  property.  Held, 
that  an  injunction  restraining  the 
operation  of  the  smelter  would  not 
be  granted  on  the  facts  shown,  but 
that,  if  it  appeared  that  any  equita- 
ble adjustment  of  the  rights  of  the 
parties  could  be  made,  the  case 
would  be  retained  for  that  purpose. 
Bliss  r.  Anaconda  Copper  Mining 
Co.,  167  Fed.  Rep.  342. 

1  Coe  V.  L.  &  N.  R.  Co.,  3  Fed.  Rep. 
775;  Chicago  &  A.  Ry.  Co.  v.  N.  Y., 
L.  E.  &  W.  R.  R.  Co.,  24  Id.  516;  Den- 
ver &  N.  O.  Ry.  Co.  V.  A.,  T.  &  S. 
F.  R.  Co.,  15  Id.  650;  Toledo,  Ann 
Arbor  &  North  Mich.  Ry.  Co.  v. 
Pennsylvania  Co.  et  ah,  54  Id.  730; 
AVolverhampton  &  W.  Ry.  Co.  v. 
London  &  N.  W.  Ry.  Co.,  L.  R.  16 
Eq.  433;  Scofield  v.  Railway  Co.,  43 
Ohio,  571;  Butchers'  Co.  v.  L.  & 
N.  R.  R.  Co.,  31  U.  S.  App.  252. 

2  Manchester  Railway  Co.  v.  Work- 
sop Board  of  Health,  23  Beav.  198; 
Eachus  V.  Moss,  14  Week.  Rep.  327; 
Martyr  v.  Lawrence,  2  De  G.,  J.  &  S. 
261;  Att.-Gen.  v.  Mid.  Kent  Railway 
Co.,  L.  R.  3  Ch.  100;  High  on  In- 
junctions, §  478. 


CH.  II  .J 


INJUNCTIONS. 


577 


belong  to  the  plaintiff  by  decree.'  In  tliis  last  case  the  injunc- 
tion is  in  the  nature  of  a  writ  of  execution.  A  mandatory  injunc- 
tion is  granted  only  with  great  caution;' — especially  upon  an 
interlocutory  application,  and  before  final  decree;  ^  and  the  incli- 
nation of  the  American  courts  was,  at  one  time,  very  much  against 
granting  such  an  interlocutory  injunction.'*  The  tendency,  how- 
ever, is  now  towards  greater  liberality  in  granting  such  appHca- 
tion,-'  and  the  decree  of  the  Chancellor  of  New  Jersey,  in  the  case 
of  The  Attorney  General  v.  The  Central  Railroad  of  New  Jersey, 
just  cited,  which  was  made  on  preliminary  hearing,  and  the 
opinion  in  the  later  case  of  the  Ann  Arbor  Railroad, "^  are  notable 
instances  of  this  tendency.'^  In  the  Ann  Arbor  case  a  mandatory, 
preliminary  injunction  was  issued  to  prevent  the  Chief  Executive 
of  the  Brotherhood  of  Locomotive  Engineers  from  issuing  any 
order  to  the  employes  of  a  railroad  whereby  they  should  be  com- 
manded to  refuse  to  handle  freight,  and,  also,  restraining  the  de- 
fendant companies,  their  employes  and  servants,  from  refusing 
to  receive  and  dehver  the  plaintiff's  freight.  ''  The  "office  of  a  pre- 
liminary injunction,"  said  Judge  Taft,*  "  is  to  preserve  the  status 


1  See  Garretson  v.  Cole,  1  Har.  & 
Johns.  370;  High  on  Injunctions, 
§  2()0. 

2  See  Mayer's  Appeal,  73  Pa.  164; 
Post  V.  Railroad,  103  Tenn.  1S4; 
Durell  r.  Pritchard,  L.  R.  1  Ch.  250. 
See,  also,  Powell  Duffryn  Steam  Coal 
Co.  V.  Taff  Vale  Railway  Co.,  L.  R.  9 
Ch.  331. 

3  Turner  v.  Spooner,  1  Dr.  &  Sm. 
467. 

*  Audenried  v.  Philadelphia  it 
Reading  R.  Co.,  68  Pa.  370;  Wash- 
ington University  v.  (ireen,  1  Md. 
Ch.  97;  Rogers  v.  Erie,  20  N.  J.  Etj. 
379;  Camblos  v.  Philadelphia  <fe 
Reading  R.  Co.,  30  Leg.  Int.  149  (U. 
S.  Cir.  Ct.  E.  D.  Penna.).  See,  also, 
The  Farmers'  R.  Co.  v.  Reno  Oil 
Creek  &  Pit  Hole  R.  Co.,  53  Pa.  224, 
and  Fredericks  v.  Huber,  180  Pa. 
575. 

5  See  Carlisle  i).  Stevenson,  3  Md. 
Ch.  499;  Longwood  Valley  R.  Co.  v. 
Baker,  27  N.  J.  Eci.  166.  Also,  Petti- 
bone  /;.  Hamilton,  40  Wis.  402;  Cole 

37 


Silver  Mining  Co.  v.  Virginia  Co.,  1 
Sawyer,  685;  Hanover  Fire  Ins.  Co. 
V.  Germania  Fire  Ins.  Co.,  33  Hun, 
539;  Norfolk  Trust  Co.  v.  Marye,  25 
Fed.  Rep.  664;  Earl  Mexborough  v. 
Bower,  7  Beav.  127;  Smith  r.  Smith, 
L.  R.  20  Eq.  500.  But  it  must  be  a 
case  of  great  necessity.  Del.,  Lack. 
&  West.  R.  Co.  V.  Cent.  Stock  Yard 
Co.,  43  N.  J.  Eq.  71 ;  Id.  77;  Id.  605. 

8  Toledo,  Ann  Arbor  &  North  Mich. 
Ry.  Co.  V.  Pennsylvania  Co.  et  nl.,  54 
I'ed.  Rep.  730.  This  was  approved 
in  Lennon  v.  Lake  Shore  Ry.,  22 
U.  S.  .\ppeals,  561 — where  the  com- 
mitment of  an  engineer  for  refusing 
to  obey  a  mandatory  injunction, 
ordering  him  to  run  trains,  was  sus- 
tained. 

^  See,  also,  Cooke  v.  Boynton,  135 
Pa.  102. 

s  Toledo,  Ann  Arbor  &  North 
Mich.  Ry.  Co.  v.  Pennsylvania  Co. 
et  al.,  54  Fed.  Rep.  730.  The  Toledo 
&  Ann  Arbor  R.  R.  case  was  approved 
in  Farmers'  Loan  &  Tr.  Co.  v.  North. 


578 


JX.IL.NCTlONb. 


[part  III. 


quo  until,  upon  final  liearing,  the  court  may  grant  full  relief. 
Generally,  this  can  be  accomplished  by  an  injunction  prohibitory 
in  form ;  but  it  sometimes  happens  that  the  status  quo  is  a  con- 
dition not  of  rest,  hut  of  action,  and  the  condition  of  rest  is  exactly 
ivhat  will  inflict  the  irreparable  injury  upon  complainant,  which 
he  appeals  to  a  court  of  equity  to  protect  him  from.  In  such  a 
case,  courts  of  equity  issue  mandatory  writs  before  tlie  case  is 
heard  on  its  merits.''  ^  In  another  branch  of  the  same  case  a  like 
conclusion  was  reached  by  Judge  Ricks.^  In  England  the  better 
opinion  is,  that  a  mandatory  injunction  may  be  had  upon  inter- 
locutory application.^ 

Indeed,  there  would  seem  to  be  no  good  reason  why,  in  a 
proper  case,  a  mandatory  injunction  should  not  issue  upon  pre- 
liminary hearing.  Gross  violations  of  rights  may  occur  in  the 
shortest  possible  time ;  and  a  few  hours '  wrong-doing  may  result 
in  the  creation  of  an  intolerable  nuisance  or  in  the  production 
of  an  injury  which,  if  prolonged,  might  soon  become  irrepara- 
ble. In  such  cases  the  interposition  of  the  strong  arm  of  the 
chancellor  ought  to  be  most  swift;  and  if  the  immediate  rehef 
afforded  could  not,  in  a  proper  case,  be  restorative,  as  well  as 
prohibitory,  no  adequate  redress  would,  in  many  instances,  be 
given. ^ 

401.  Prohibitory  injunctions. 

A  prohibitory  injunction,  as  its  name  imports,  is  one  which 
is  granted  for  the  purpose  of  rCvStraining  the  defendant  from 
the  continuance  or  conmiission  of  some  act  which  is  injurious 


Pac.  R.  R.  Co.,  60  Fed.  Rep.  810; 
Chattanooga  Tenai.  Ry.  Co.  v.  Fel- 
ton,  69  Fed.  Rep.  283. 

1  Citing,  inter  alia,  Whitecar  r. 
Michenor,  37  N.  J.  Eq.  6;  Broome  v. 
Telephone  Co.,  42  Id.  141.  See,  also, 
Rice  Milling  Co.  v.  Romero,  105  La. 
439;  Gates  v.  Detroit  Ry.  Co.,  151 
Mich.  548. 

254  Fed.  Rep.  7.50;  citing,  inter 
alia,  Beadel  v.  Perry,  L.  R.  3  Eq. 
465.  See  the  language  of  Vice- 
Chancellor  Stuart  in  this  last  cited 
case. 

3  Lane  v.  Newdigate,  10  Ves.  192; 
Robinson  v.  Lord  Byron,  1  Bro.  C.  C. 
588;  Rankin  v.  Huskisson,  4  Sim.  13-. 


Hervey  v.  Smith,  1  K.  &  J.  392;  Att.- 
Gen.  i\  Metropolitan  Board  of  Works, 
1  Hem.  &  M.  312;  Hepburn  v.  Lor- 
dan,  2  Id.  345;  Kerr  on  Injunctions, 
252.  See,  however.  Gale  v.  Abbott, 
8  Jur.  (n.  s.)  987;  Child  v.  Douglas, 
Kay,  578. 

*  See  Bonner  v.  Gt.  Western  Ry. 
Co.,  24  Ch.  D.  1,  and  the  remarks  of 
Fry,  L.  J.,  on  p.  10.  If  a  defendant 
acts  after  receiving  notice  that  an 
injunction  is  about  to  be  applied  for, 
but  before  it  is  issued,  he  may,  if  the 
injunction  is  granted,  be  compelled 
to  undo  what  he  has  done.  Daniel  v 
Ferguson  [1891],  2  Ch.  27. 


CH.  II.] 


INJUNCTIONS. 


579 


to  the  plaintiff.  This  is  by  far  the  more  frequent  form  which 
the  injunction  assumes;  and  it  is  met  with  in  the  every-day  exer- 
cise of  equitable  powers.  The  occasions  which  call  it  forth  will  be 
explained  further  on. 

402.  Character  of  the  equitable  remedy  by  injunction. 

The  relief  afforded  by  the  writ  of  injunction  is  probably 
the  most  effective,  the  most  characteristic,  and  the  most  exten- 
sive of  equitable  remedies.  It  is  most  frequently  employed  (as 
has  been  already  stated)  in  its  prohibitory  form,  and  it  is  used 
to  prevent  injuries  to  property  which  are  imminent,  irrepar- 
able, and  for  which  damages  furnish  an  entirelj^  inadequate  re- 
dress. With  the  single  exception  of  the  writ  of  estrepement,  no 
common-law  process  exists  by  which  injuries  to  property  can  be 
prevented  as  distinguished  from  being  redressed;  and  hence  the 
equitable  remedy  by  injunction  possesses  a  peculiar  value,  as 
furnishing  a  kind  of  relief  which  can  be  obtained  in  no  other 
forum.  No  remedy,  either  at  law  or  in  equity,  can  compare  with 
the  injunction  in  promptness  and  completeness;  and  hence  no 
equitable  remedy  has  been  so  frequently  or  extensively  called 
into  play,  or  has  contributed  so  much  to  the  extension  of  the 
jurisdiction  of  Courts  of  Chancery.^ 

The  remedy  afforded  by  the  civil  law  which  approaches  most 
nearly  to  that  given  by  the  injunction,  was  the  interdict  and  ac- 
tion founded  thereon.  These  interdicts  were  under  pnetorian 
authority,  and  were  pronounced  by  the  ])ra>tors  by  virtue  of 
their  extraordinar}^  jurisdiction,  and  in  mitigation  of  the  severity 
which  had  resulted  from  an  undeviating  adherence  to  the  techni- 
cal forms  of  the  civil  law.- 

Injunctions  are  of  very  early  occurrence  in  the  histor}^  of  the 
English  law.  Mr.  Spence  gives  an  instance  of  an  injunction  issued 
in  the  reign  of  Henry  I. ;  ^  and  several  cases  of  injunctions  are  to 
be  found  in  the  Chancery  Calendar.^ 


1  But  the  operation  of  this  remedy 
must  be  confined  within  proper 
Hmits.  An  injunction,  for  example, 
will  not  be  granted  the  effect  of 
which  is  to  tie  U|)  a  inau's  entire 
property;  Ervin'.s  Appeal.  S2  Pa. 
188;  or  which  will  restrain  public 
works,  unless  the  clearest  abuse  is 
proved.    Wheeler  v.  Rice,  83  Id.  2o2; 


Moore  v.  Atlanta,  70  Ga.  (ill.  Nor 
will  equity  interfere  with  political 
associations  where  no  rights  of  prop- 
erty are  involved.  Kearns  v.  How- 
ley,  188  Pa.  11(1. 

2  See  .Joyce  on  Injunctions,  2,  note. 

3  Spence's  Eq.  108,  note  a. 

*  The  Burgesses  of  East  Retford  v. 
Thomas  de  Hercy,  Chan.  Cal.  ix.  and 


580  INJUNCTIONS.  [part  III. 

403.  Classification  of  injunctions  ;  interlocutory  and  per- 
potual. 

Besides  the  classification  into  mandatory  and  prohibitory, 
there  are  several  other  divisions  of  injunctions. 

Tiijunctions  are  either  interlocutory  or  perpetual.^  An  inter- 
locutory injunction  is  one  granted  upon  preliminary  application 
(sometimes  when  the  bill  is  filed),  and  before  final  hearing.  It 
is  provisional  merely,  and  concludes  no  rights.  A  perpetual 
injunction,  on  the  other  hand,  is  made  only  on  final  decree,  and 
is  an  adjudication  upon  the  merits  of  the  controversy.  It  consti- 
tutes, in  fact,  the  decree,  or  part  of  the  decree,  in  the  cause. ^ 

404.  Ex  parte,  or  at  the  hearing. 

Injunctions  are  either  ex  parte,  that  is,  granted  upon  the  ap- 
plication of  the  plaintiff,  without  the  defendant  being  heard; 
or  are  such  as  are  granted  upon  hearing  both  plaintiff  and  de- 
fendant.'^ An  ex  parte  injunction  is  only  granted  where,  in  urgent 
cases,  delay  might  produce  irreparable  injury  to  property,  or  in 
similar  cases  to  restrain  proceedings  at  law.  It  may  be  granted 
before  the  defendant's  appearance  and  without  notice  to  him.^ 
The  defendant,  however,  is  always  given  an  early  opportunity  to 
come  in  and  move  to  dissolve  the  injunction. 

It  is  to  be  observed,  moreover,  that  after  bill  filed  the  defend- 
ant proceeds  at  his  peril,  and  has  no  ground  to  complain  if,  by 
the  decree,  he  is  compelled  to  undo  that  which  has  been  done 
after  the  institution  of  the  suit.  Thus,  in  Clark  v.  Martin,-"'  a 
motion  was  made  to  restrain  the  carrying  up  a  single-storied 
back  building  of  a  house  two  stories  higher.  The  motion  was 
refused,  and  the  building  went  on  and  was  completed.  On  ap- 
peal, however,  the  injimction  was  granted,  and  the  effect  of  this 
was  to  compel  the  tearing  down  of  the  additional  stories.^ 

405.  Common  or  special. 

Again:  injunctions  are   (or  rather  were)   either  common  or 

X.;  Astel  v.  Causton,  Id.  cviii.;  Ed-  ^  Id.  2. 

yall  V.  Hunston,  Id.  cxiii.;  Peverell  =  49   Pa.   289.     See  ante,   p.   578, 

('.  Huse,  Id.  cxxii.;  Royall  v.  Garter,  note  4. 

Id.    cxxx.;    Hoigges    v.    Harry,    Id.  6  See,    also,    Western   v.    MacDer- 

xxiv.;  anfe,  p.  12.  mott,    L.    R.    2   Ch.    72;    Durell    v. 

1  Kerr  on  Injunctions,  Chap.  II.  Pritchard,  1  Id.  244;  Yates  v.  Jack, 

2  See  Kershaw  r.  Thompson,  4  Id.  295;  Warren  &  FrankUn  Railway 
Johns.  Ch.  610.  Co.  v.  Clarion  Land  Co.,  54  Pa.  38; 

3  Joyce  on  Injunctions,  1.  Ives  v.  Edison,  124  Mich.  402. 


CH.  II.]  INJUNCTIONS.  581 

special.  The  common  injunction  was  one  which  was  granted 
in  aid  of  or  secondary  to  another  equity,  as  in  the  case  of  injunc- 
tions to  restrain  proceedings  at  law,  and  it  issued  of  course  upon 
the  coming  in  of  the  bill,  without  notice.^  As  soon,  however,  as 
the  defendant  files  his  answer,  he  may  move  to  dissolve  the  in- 
junction; and  it  is  then  a  question  for  the  discretion  of  the  court 
whether,  on  the  facts  disclosed  by  the  answer,  or,  as  it  is  techni- 
cally termed,  upon  the  equity  confessed,  the  injunction  shall  be 
at  once  dissolved,  or  whether  it  shall  be  continued  to  the  hearing.^ 

If  the  common  injunction  is  obtained  before  the  declaration 
has  been  filed  in  the  action  at  law  which  the  injunction  seeks 
to  restrain,  it  stays  all  further  proceedings  in  that  action.  If 
obtained  after  the  declaration,  the  defendant  (the  plaintiff  in 
the  action  at  law)  is  permitted  to  go  on  to  judgment,  but  the 
injunction  stays  the  execution.  If  the  defendant  requires  dis- 
covery to  aid  him  in  the  trial  at  law,  proceedings  will  be  stayed 
on  special  application,  until  the  coming  in  of  the  answer.-' 

The  common  injunction  has  been  practically  abolished  in  Eng- 
land ;  as  such  injunctions  are  no  longer  of  course,  but  are  granted 
only  upon  a  bill  which  makes  out  a  prima  facie  case,  and  which 
must  be  supported  by  affidavit.-*  In  the  United  States,  as  a  gen- 
eral rule,  the  common  injunction  does  not  exist;  but  all  injunc- 
tions are  granted  on  the  merits.^ 

Special  injunctions  are  those  which  are  granted  upon  the 
merits  as  disclosed  by  affidavits.  The  allowance  of  a  special 
injunction  rests  in  the  sound  discretion  of  the  court.^     It  is 

1  High  on  Injunctions,  §  G.  But  see  Bigler  r.  Penna.  Canal  Co., 

2  Hoffman  v.  Livingston,  1  Johns.  177  Pa.  28,  and  the  remarks  of  Dean, 
Ch.  211;  Roberts  v.  Anderson,  2  Id.  J.,  on  p.  36.  If  the  legal  or  equita- 
202.  ble  rights  of  the  plaintiff  are  being 

:<  Adams's  Doct.  of  Equity,  195.  violated,  if  he  has  no  adequate  rem- 

•»  Stat.  15  and  16  Vict.,  c.  86,  §  58  edy  at  law,  if  he  has  been  vigilant 

(Chancery     Procedure     Act,     1852);  in  asserting  his  rights,  if  he  comes 

Smith'sManualof  Equity,  411;  Joyce  into    court    with    clean    hands,    and 

on  Injunctions,  1.  otherwise  meets  the  general  require- 

5  Buckley  v.  Corse,  Saxton,  504;  ments  imposed  by  equitable  maxims, 
Perry  v.  Parker,  1  Wood  &  Win.  280;  he  ought  not  to  be  refused  rehef,  be- 
High  on  Injunctions,  §  6.  cause   to   grant   it   would   inconven- 

8  It  has  been  said,  in  some  cases,  ience  or  even  injure  the  wrong-doer — 
that  an  injunction  will  be  refused  the  defendant;  for  no  one  can  be 
when  to  grant  it  would  cause  greater  said  to  be  injured,  in  the  eye  of  the 
injury  than  to  refuse  it.  See  Normal  law,  when  he  is  compelled  to  discon- 
School  V.  Cooper,  150  Pa.  80;  Heil-  tinue  wrongful  acts.  In  this  con- 
man  V.  Lebanon  Ry.  Co.,  175  Id.  188.  nection,  see  Strobel  v.  Kerr  Salt  Co., 


582  INJUNCTIONS.  [part  III. 

granted  only  on  special  application,  though  it  may  be  ex  parte; 
and  it  is  usual  in  the  United  States  to  require  security  before 
issuing  the  writ.^ 

40G.  General  division  of  the  subject  of  injunctions. 

The  nature  of  the  writ  of  injunction  having  been  thus  briefly 
noticed,  the  occasions  for  the  exercise  of  this  equitable  remedy 
must  be  considered. 

The  object  of  the  remedy  being  to  prevent  an  infringement 
of  rights,^  the  general  division  of  the  subject  may  naturally  be 
into  those  cases  in  which  the  writ  issues  for  the  purpose  of  pro- 
tecting equitable  rights,  and  those  in  which  it  issues  for  the  pur- 
pose of  [)r(n^enting  injury  to  legal  rights.*' 

The  first  class  of  cases  may  be  subdivided  into  those  in  which 
the  writ  issues  for  the  protection  of  equitable  rights  by  enjoin- 
ing ])i-oceedings  at  law,  whereby  and  wherein  such  rights  may 
be  violated  or  disregarded,  and  those  in  which  the  writ  issues 
for  the  protection  of  such  equities  when  injury  is  threatened  by 
other  means  than  through  legal  proceedings — as  where  the  rights 
of  legatees,  partners,  cesttds  que  triistenf,  mortgagors  and  others, 
are  in  danger  of  being  violated  by  the  executor  or  administrator, 
co-partner,  trustee,  or  mortgagee,  as  the  case  may  be. 

407.  Injunctions  to  restrain  proceedings  at  law ;  Earl  of 

Oxford's  case. 

And,  first,  as  to  the  protection  of  equitable  rights  by  enjoining 
proceedings  at  law. 

It  is  well  established  that  equity  will  interfere  to  restrain  pro- 
ceedings at  law  wherever  through  fraud,  mistake,  accident,  or 
want  of  discovery  one  of  the  parties  in  a  suit  at  law  obtains,  or 
is  likely  to  obtain,  an  unfair  advantage  over  the  other,  so  as  to 
make  the  legal  proceedings  an  instrument  of  injustice.'*    The 

164  N.  Y.  303;  Crescent  Mining  Co.  used  to  correct  past  injuries.    Davis 

V.   Silver   King   Min.   Co.,    17   Utah,  v.  Hartwig,  195  Mo.  380. 

444,  and  McGregor  v.  Case,  80  Minn.  3  The  statute  in  Pennsylvania  au- 

214.  thorizes  the  courts  to  restrain  acts 

1  High  on  Injunctions,  Chap.  XXI.;  which  are  "contrary  to  law."  It  has 
Daniels's  Chan.  Prac.  1776.  See  been  held  that  under  this  statute 
Bein  t'.  Heath,  12  How.  168.  In-  an  injunction  may  issue  to  restrain 
stances  may  occur  in  which  it  is  not  acts  which  are  contrary  to  "equity." 
necessary  to  give  security.  Dodd  v.  Stockdale  v.  Ullery,  37  Pa.  486. 
Flavell,  17  N.  J.  Eq.  255.  See  McKane  r.  Adams,  123  N.  Y.  609. 

2  An    injunctive    writ    cannot    be  *  Earl  of  Oxford's  Case,  1  Ch.  Rep. 


CH.  II.] 


INJUNCTIONS. 


583 


ground  of  this  interference  is,  that  in  order  to  do  complete  justice 
every  part  of  the  dispute  between  the  parties  should  be  passed 
upon.^  Now,  in  the  common-law  courts,  the  rights  of  parties 
could,  in  many  instances,  receive  only  a  partial  consideration, 
as  those  courts  could  not  adjudicate  eciuities,  and  thus  only  a 
part  of  the  dispute  could  actually  be  decided.^  It  was  to  afford 
a  remedy  to  this  wrong  that  chancery  interfered  and  assumed 
jurisdiction  to  stay  legal  proceedings.  This  jurisdiction  is  exer- 
cised at  any  stage  of  the  legal  cause.  Thus,  an  injunction  is 
sometimes  granted  to  stay  trial:  sometimes  after  verdict  to  stay 
judgment,  sometimes  after  judgment  to  stay  execution;  ^  some- 
times to  prevent  the  assignment  of  the  judgment;'*  and  some- 
times after  execution  to  stay  the  money  in  the  hands  of  the 
sheriff  if  it  is  a  case  oi  fieri  faciaH ;'  or  to  stay  the  deUvery  of  pos- 
session if  it  is  a  writ  of  possession.  It  is  usually  granted  on  the 
application  of  the  defendant,  but  the  plaintiff  may  have  an  in- 
junction, as  where  a  verdict  has  been  rendered  against  the  plain- 
tiff by  inequitable  means,  he  may  come  into  chancery  to  prevent 
the  entry  of  judgment  and  to  get  a  new  trial.  In  short,  the  right 
to  resort  to  equity  does  not  belong  to  the  defendant  alone. 


1;  2  Lead.  Cas.  Eq.  601  (4th  Eng. 
ed.).  See,  also,  Lyme  v.  Allen,  51 
N.  H.  242;  Ferguson  v.  Fisk,  28 
Conn.  501;  Weed  v.  Grant,  30  Id.  74; 
Dehon  v.  Foster,  4  Allen,  545;  Hine 
V.  Handy,  1  Johns.  Ch.  6;  Atlantic 
De  Laine  Co.  v.  Tredrick,  5  R.  I. 
171;  Smithurst  v.  Edmunds,  14  N.  J. 
Eq.  408;  Metier  v.  Metier,  18  Id. 
270;  19  Id.  457;  Worrell  v.  The 
Church,  23  Id.  96;  Hall  v.  Piddock, 
21  Id.  311;  Lyon's  Appeal,  61  Pa. 
15;  Wistar  v.  McManes,  54  Id.  324; 
Given's  Appeal,  121  Id.  266;  Bulows 
V.  The  Committee  of  O'Neall,  4  Dess. 
394;  Vennum  v.  Davis,  35  111.  568; 
Davis  I'.  Hoopes,  .33  Miss.  173; 
Daniel's  Chan.  Prac.  1725;  Gibson  v. 
Am.  L.  &  T.  Co.,  58  Hun,  443.  See 
Ochsenbien  v.  Papelier,  L.  R.  8  Ch. 
695,  where  the  application  of  the 
rule  to  proceedings  on  foreign  judg- 
ments was  discussed.  The  injunc- 
tion in  this  case  was  refused.     See 


upon  this  subject  Dinsmdre  v.  Nere- 
sheimer,  32  Hun,  204;  High  on  In- 
junctions, Chap.  II,  §  2,  and  Hilliard 
on  Injunctions,  Chap.  VI. 

1  Kerr  on  Injunctions,  13. 

2  See  Johnson  v.  Christian,  128 
U.  S.  374. 

3  Follansbee  v.  Scottish-Am.  Mfg. 
Co.,  7  111.  App.  498.  And  even  to  set 
aside  the  sale.  Herbert  v.  Herbert, 
47  N.J.  Eq.  11. 

4  Kallander  v.  Neidhold,  98  Mich. 
517. 

5  The  common  injunction,  if  ob- 
tained after  declaration,  did  not  stay 
proceedings  at  once,  as  the  plaintiff 
in  the  common-law  action  was  at 
liberty  to  go  on  until  verdict  and 
then  stop.  If  the  injunction  was 
obtained  before  declaration,  it  stayed 
proceedings  at  once.  And  see 
Bushong  V.  Rector,  32  W.  Va.  311; 
National  Park  Bank  v.  Goddard,  62 
Hun,  31;  Id.  131  N.  Y.  494. 


584  INJUNXTIOXS.  [part  III. 

It  has  been  held  in  England  that  a  plaintiff  might  file  a  bill 
to  enjoin  a  defendant  from  setting  up  a  plea;  ^  and  the  Supreme 
Court  of  the  United  States  has  said  that  while  its  "attention 
has  not  been  called  to  any  case  wherein  a  bill  has  been  sustained 
in  favor  of  a  ^plaintiff  in  a  proposed  action  at  law  to  enjoin  a  de- 
fendant from  setting  up  a  threatened  defence,  upon  the  ground 
that  he  is  equital:)ly  esto]jjjed  from  so  doing,  we  know  of  no  good 
reason  why  he  should  not  l)e  j^ermitted  to  do  so,  unless  his  remedy 
at  law  be  plain,  adequate,  and  complete."  - 

But  the  party  applying  for  an  injunction  to  restrain  a  creditor 
from  collecting  a  debt  which  has  been  reduced  to  judgment  must 
have  a  proper  standing  in  court.  A  simple  contract-creditor  who 
has  not  reduced  his  debt  to  judgment  has  not  such  a  standing, 
and  a  court  of  equity  will  not  interfere  at  his  instance  to  prevent 
a  judgment-creditor  from  issuing  process  in  execution.^ 

The  right  of  the  Court  of  Chancery  to  exercise  this  jurisdiction, 
especially  after  judgment,  was  the  occasion  of  the  well-known 
dispute  in  the  reign  of  James  I.,  between  Lord  Chancellor  Elles- 
mere  and  Lord  Chief  Justice  Coke.  An  action  had  been  tried  in 
the  King's  Bench,  in  which  the  plaintiff  lost  his  verdict  in  conse- 
quence of  one  of  his  witnesses  being  artfully  kept  away.  He 
then  came  into  chancery,  praying  discovery  from  the  defendant. 
The  latter  refused  to  answer  and  was  committed  to  prison  for 
contempt.  Indictments  were  then  preferred  (at  the  instance  of 
Coke)  against  the  complainant  and  his  counsel;  but  they  were 
thrown  out  by  the  grand  jury.  The  king  then  interfered  in  favor 
of  the  chancellor,  and  made  an  order  on  his  council  book,  declar- 
ing that  he  had  not  exceeded  his  jurisdiction,  and  the  parties 
who  had  preferred  the  indictment  were  prosecuted  in  the  star 
chamber.'' 

Since  this  dispute  the  general  right  of  chancery  to  interfere 
by  injunction,  for  the  purpose  of  preventing  an  inecjuitable  use 
of  legal  process,  has  not  been  questioned  in  England,  and  the 
same  rule  exists  in  the  United  States.^ 

1  Stewart  v.  Railroad  Co.,  2  "De.  G.  *  Earl  of  Oxford's  Case,  1  Ch.  Rep. 
&S.  319.                                                       1;  2  Lead.  Cas.  Eq.  601   (4th  Eng. 

2  Davis  V.  Wakelee,  156  U.  S.  680-      ed.). 

686.  5  See,  on  this  subject,  Hilliard  on 

3  See  Artman  y.  Giles,  1.55  Pa.  409-  Injunctions,  pp.  187  et  seq  (.3d  ed.). 
415,  where  the  subject  is  fully  con-  See  case  in  C.  P.  of  Chester  Co.,  Pa., 
sidered,  and  Wait  on  Fraudulent  in  the  17th  century,  cited  in  Mr. 
Conveyances,  §  73.  Lawrence  Lewis,  Jr.,  Essay  in  Hist. 


CH.  II.] 


INJUNCTIONS. 


585 


408.  Not  in  the  nature  of  Writs  of  Prohibition. 

It  is  important  to  reinembcr  tluit  in  granting  this  relief  equity 
does  not  pretend  or  assume  to  interfere  with  another  court.  The 
injunction  is  in  personam  merely.  It  is  directed  to  the  party,  not 
to  the  court  or  the  officers  thereof.  It  is  not,  in  other  words,  a 
writ  of  prohibition.'  An  injunction,  for  example,  restraining  an 
execution  would  not  issue  to  the  prothonotaries  or  clerks  of  the 
connnon-law  court  wherein  the  judgment  had  been  obtained, 
but  to  the  plaintiff  in  the  action,  forbidding  Jtim  to  take  any 
steps  towards  getting  out  a  writ  of  execution,  and  disobedience 
to  this  injunction  would  be  a  contempt  on  the  plaintiff's  part  and 
punishable  accordingly.' 

409.  General  nature  of  this  jurisdiction. 

It  is  difficult  to  mark  out  with  precision  the  exact  limits  within 
which  a  court  of  equity  will  interfere  with  proceedings  at  law. 
Some  general  principles,  however,  have  been  well  established; 
and  certain  recognized  cases  exist  in  which  the  jurisdiction  of 
chancery  is  assumed.^ 

It  may  be  said  on  high  authority  that  any  fact  which  clearly 
proves  it  to  be  against  conscience  to  execute  a  judgment,  and 
of  which  the  injured  party  could  not  have  availed  himself  in 
a  court  of  law,  or  of  which  he  might  have  availed  himself  in  a 
court  of  law,  but  was  prevented  by  fraud  or  accident,  unmixed 
with  any  fault  or  negligence  in  himself  or  his  agents,  will  justify 


Soc.  Mag.  for  July,  1881,  where  a 
court  sitting  as  a  court  of  equity 
reversed  the  judgment  which  it  had 
given  as  a  court  of  law. 

'  Kerr  on  Injunctions,  14,  15.  See 
Moore  v.  Browne,  a  case  in  the  Reg- 
ister's Book  of  the  Early  Court  of 
Chancery  in  the  Colony  of  Pennsyl- 
vania, p.  .31.  Appendix  to  Rawle's 
Essay  on  Equity  in  Pennsylvania, 
p.  20.  See,  also,  Mactavish  i\  Kent, 
Circuit  Judge,  122  Mich.  242;  Gra- 
ham V.  Citizens'  Nat.  Bank,  45 
W.  Va.  701. 

2  Wynn  v.  Newman,  75  Va.  811. 
See,  moreover.  Cole  v.  Cunningham, 
133  U.  S.  107,  where  the  Supreme 
Court  of  the  United  States  affirmed 
the  right  of  a  Mas.sachusetts  court  to 


restrain  citizens  of  that  state  from 
prosecuting  an  action  at  law  in  a 
state  court  of  New  York.  A  court 
of  equity  has  jurisdiction  to  enjoin 
a  resident  creditor  from  instituting 
or  prosecuting  an  action  or  proceed- 
ing in  another  state,  for  the  purpose 
of  evading  the  exemption  laws  of 
this  state  and  of  collecting  his  claim 
by  subjecting  to  its  satisfaction 
property  or  credits  which  the  debtor 
could  claim  as  exempt  if  the  action 
or  proceeding  were  brought  within 
the  state.  Wierse  v.  Thomas,  145 
N.  C.  261. 

3  Albright  v.  Oyster,  19  Fed.  Rep. 
849,  and  note;  Shinkle  v.  Covington, 
83  Ky.  420;  Denny  v.  Fronheiser,  207 
Pa.  178. 


nm 


INJUNCTIONS. 


[part  III. 


an  application  to  a  Court  of  Chancery.^  If  the  defence  is  equally 
available  in  a  court  of  law,  either  by  application  to  the  court  in 
which  the  judgment  is  rendered  or  by  appeal,'  and  no  special 
ground  exists  growing  out  of  fraud  or  accident,  equity  will  not 
interfere.'"'  Thus  where  judgment  is  obtained  at  law  by  means 
of  perjured  testimony,  equity  will  not  interfere.'*  To  warrant 
relief  in  equity  against  a  judgment  at  law,  it  must  be  shown  not 
only  that  injustice  had  been  done,^  but  that  the  defendant  was 
not  guilty  of  laches  about  his  defence.^    Thus,  in  Lansing  v. 


1  Marine  Ins.  Co.  v.  Hodgson,  7 
Cranch,  332;  North  Chicago  Mill  Co. 
V.  St.  Louis  Co.,  152  U.  S.  596;  Laza- 
rus i'.  McGuirk,  42  La.  Ann.  194; 
Given's  Appeal,  121  Pa.  266;  Rad- 
zuweit  ('.  Watkins,  .53  Neb.  412; 
Dowell  V.  Goodwin,  22  R.  I.  287; 
Brown  v.  Hurd,  56  111.  317.  See,  also, 
Dodge  V.  Strong,  2  Johns.  Ch.  228; 
Duncan  ?'.  Lyon,  3  Id.  356;  Thomp- 
son V.  Van  Buren,  Id.  395;  Foster  v. 
Wood,  6  Id.  87;  Robinson  v.  Wheeler, 
51  N.  H.  374;  Norton  v.  Woods,  22 
Wend.  522;  Nye  v.  Sochon,  92  Wis. 
43;  Cairo,  etc.,  R.  Co.  v.  Titus,  27 
N.  J.  Eq.  102;  Doughty  v.  Doughty, 
Id.  315;  Borcherling  v.  Ruckelshaus, 
49  Id.  340;  First  Baptist  Ch.  v 
Syms,  51  Id.  363;  Walter  v.  Heller, 
90  Ind.  198;  Kan.  &  Ark.  Val.  R.  R. 
Co.  V.  Fitzhugh,  61  Ark.  341;  Won- 
derly  v.  Lafayette  Co.,  150  Mo.  635. 
See,  moreover.  Miller  v.  McCan,  7 
Paige  Ch.  451;  Penn  v.  Ingles,  82 
Va.  65.  The  court  will  not  inter- 
fere merely  because  the  judgment  is 
irregular;  Baker  v.  Morgans,  2  Dow, 
526;  Shottenkirk  v.  Wheeler,  :; 
Johns.  Ch.  280;  Life  Ins.  Co.  v.  Bangs, 
103  U.  S.  780;  nor  because  the  execu- 
tion is  irregular.  Hastings  v.  Crop- 
per, 3  Del.  Ch.  165;  Jarvis  v.  Martin, 
77  Conn.  19;  Kretschmar  r.  Ru- 
precht,  230  111.  492. 

2  Brown's  .\pp.,  66  Pa.  157;  Pol- 
lock V.  Boyd,  36  Neb.  369;  Levystein 
Bros.  V.  O'Brien,  106  Ala.  352;  The 
Mountain  Lake  Park  Ass'n  v.  Shart- 


zer,  83  Md.  10;  Teft  v.  Booth,  104 
Ga.  590;  Byrne  v.  Brown,  40  Fla.  109. 
3  Hendrickson  v.  Hinckley,  17 
How.  443;  Knox  Co.  v.  Harshman, 
133  U.  S.  154;  Smith  v.  Worthing- 
ton's  Admr.,  10  U.  S.  App.  622; 
Skirving  r.  Nat.  Life  Ins.  Co.,  19 
Id.  442;  Tompkins  v.  Drennen,  13 
Id.  312;  Woodworth  v.  Van  Buskerk, 
1  Johns.  Ch.  432;  Baron  de  Worms  v. 
Miellier,  L.  R.  16  Eq.  554;  Bryan  v. 
Long,  14  Fla.  366;  Crim  v.  Hand- 
ley,  94  U.  S.  652;  Minturn  v.  Farmers' 
Loan  &  Trust  Co.,  3  Comst.  498; 
Linn  v.  Neldon's  Admrs,  23  N.  J. 
Eq.  169;  Lyme  v.  Allen,  51  N.  H. 
242;  Olmsted's  Appeal,  86  Pa.  284; 
Blair  v.  Reading,  99  111.  600;  Twp.  of 
Centre  v.  Marion  County,  110  Ind. 
579;  Guthrie  v.  Doud,  33  111.  App. 
68;  Stewart  ?^  Snow,  5  Ind.  Ter.  126; 
Gorman  v.  Bonner,  80  Ark.  339; 
Rowland  v.  Staniford,  78  Neb.  343; 
Thomas  v.  Boyd,  108  Va.  584. 

K'amp  V.  Ward,  69  Vt.  286;  Md. 
Steel  Co.  V.  Marney,  91  Md.  360; 
Munro  v.  Callahan,  55  Neb.  75;  Don- 
ovan V.  Miller,  12  Idaho,  600.  Nor 
where  judgment  is  obtained  on  a 
false  return  by  a  sheriff.  Smoot  v. 
Judd,  184  Mo.  508. 

5  Ford  )'.  Hill,  92  Wis.  188.  See 
Hockaday  r.  Jones,  8  Okla.  156. 

fiDey  V.  Martin,  78  Va.  1.  See, 
also.  Snider  v.  Riuehart,  20  Colo. 
456  (where  the  subject  is  discussed) ; 
Jackson  v.  Woodruff,  57  Ark.  599; 
Donovan  v.  Miller,  12  Idaho,  600. 


Jl 


CH.  II.] 


INJUNCTIONS. 


587 


Eddy,  where  a  hill  was  filed  to  enjoin  the  collection  of  a  judg- 
ment on  the  ground  of  usury,  and  foi-  the  discovery  of  the  usury. 
Chancellor  Kent  I'efused  an  injunction,  because  the  usury  would 
have  been  a  good  defence  at  law,  and  no  reason  was  given  why 
the  defendant  in  the  judgment  did  not  seek  the  discovery  while 
the  suit  at  law  was  pending.  In  the  same  case,  also,  the  chan- 
cellor was  asked  to  enjoin  the  execution  because  the  judgment 
had  been  paid ;  ))ut  this  was  likewise  refused,  on  the  ground  that 
the  party  alleged  to  be  injui-ed  had  a  y)rom])t  and  atlequate 
remedy  at  law.^  The  principle  is  that,  as  between  concurrent 
jurisdictions,  that  which  first  attaches  will  have  the  preference,- 
and  the  necessity  for  equitable  interference  has  been  vei-y  much 
lessened  of  late  years,  l)y  the  facihty  with  whicii  verdicts  ai-e 
^:et  aside,  new  trials  granted,  and  judgments  opened  in  conrls 
of  common  law. 

It  is  a  question  of  some  doubt  whether  the  assumption  of 
equitable  principles  by  common-law  courts  makes  any  diffei'encc 
in  the  right  of  courts  of  e([uity  to  interfere  by  injunction.  It 
has  been  decided  in  New  York  and  \'ermont,  that  the  execution 
of  a  judgment  might  be  restrained  on  equitable  grounds,  al- 
though those  grounds  would,  under  the  modern  liberality  of 
common-law  courts,  have  been  entertained  at  kw,  and  would 
have  constituted  a  good  defence  there.  This  line  of  decisions 
is  based  on  the  general  doctrine  that  the  jurisdiction  of  equity 
will  not  be  ousted  by  any  subsequent  assumption  of  similar 
jurisdiction  by  common-law  courts. ■■*  In  other  decisions  a  con- 
trary rule  has  been  held:  and  it  has  been  decided  that  equity 
would  not  interfere  where  the  defence  might  have  been  taken 
in  the  ordinary  course  of  legal  proceedings.^     And  where  the 


1  Lansing  v.  Eddy,  I  .Johns.  Ch.  4'.); 
8mith  V.  Lowry,  Id.  32U;  Barlccr  r. 
Ellkins,  Id.  465;  Floyd  v.  Jayne,  G  Id. 
479;  Holmes  v.  Remsen,  7  Id.  2S(); 
Roach  V.  Duckworth,  95  N.  Y.  391; 
Mvirphy  i\  Wilmington,  6  Houst. 
108. 

2  See  South  Eastern  Railway  Co.  ?'. 
Brogden,  3  MacN.  &  G.  23;  Hoare  r. 
Bremridgc,  L.  R.  8  Ch.  App.  22; 
Conover  v.  The  Mayor,  25  Barb.  513; 
Crane  v.  Bunnell,  10  Paige  Ch.  333; 
Simpson  v.  Hart,  1  Johns.  Ch.  97; 
Telford  v.  Brinkerhoff,  163  111.  439. 


Tlie  fact  that  the  common-law  court 
has  made  an  error,  will  nut  justify 
chancery  in  enjoining  the  judgment. 
Graham  v.  Citizens'  Nat.  Bank,  45 
W.  Va.  701. 

•'King  V.  Baldwin,  17  Johns.  R. 
384,  overruling  Chancellor  Kent  in 
2  Johns.  Ch.  554;  Viele  v.  Hoag,  24 
Vt.  46.  See,  also,  Williams  v.  Pile, 
104  Tcnn.  273. 

*  Dickerson  v.  The  Commissioners, 
6  Ind.  128.  Unless  the  defendant's 
failure  to  do  so  was  due  to  some 
cause  recognized  under  the  circum- 


588 


INJUXCriONS. 


[part  III. 


powers  of  courts  of  coimiion  law  to  entertain  equitable  <lefences 
have  been  conferred  by  statute,  the  reason  for  the  interference 
of  chancery  would  seem  no  longer  to  exist. ^ 

The  fact,  however,  that  a  court  of  law  has  concurrent  juris- 
diction with  a  court  of  equity,  will  not  prevent  the  latter  from 
interfering  wherever  from  the  special  circumstances  of  the  case 
complete  justice  could  not  be  done  in  the  former  tribunal. 

410.  General  extent  of  this  jurisdiction  ;  equitable  titles 

protected. 

The  cases  which  warrant  the  interference  of  courts  of  equity 
with  the  parties  to  a  legal  proceeding,  are  co-extensive  with  the 
subjects  of  equitable  jurisdiction.  It  may  be  said,  generally  that 
an  injunction  will  be  granted  to  restrain  an  action  at  law  wherever 
an  equitable  title  is  not  recognized,  or  an  equitable  right  not  en- 
forced, or  where  exact  and  complete  justice  would  not  be  done 
between  the  parties  by  reason  of  the  want  of  an  equitable 
remedy. 2  Thus,  by  running  over  the  heads  of  equitable  juris- 
diction, which  are  pointed  out  in  this  work,  it  will  be  seen  what 
are  the  occasions  upon  which  the  writ  of  injunction  to  stay  pro- 
ceedings at  law  may  issue. 

Thus,  if  a  trustee  were  to  assert  his  legal  title  by  ejectnuMU 
against  the  beneficial  owner,  equity  would  interfere  by  injunc- 
tion. And  the  remedy  applies  to  implied  as  well  as  express 
trusts.'"* 

Equity  will  also  restrain  suits  at  law  whereby  or  wherein  the 
equitable  titles  growing  out  of  mortgages,  and  the  assignment 
of  choses  in  action,  are  likely  to  be  disturbed  or  disregarded.'* 

411.  Equitable  rights  protected. 

It  has  been  explained  in  a  former  part  of  this  work  that  cer- 
tain equitable  rights  or  "equities"  grow  out  of  accident,  mis- 
take, and  fraud;  and  the  nature  of  these  different  heads  of  juris- 


stances   as    a   ground    for   equitable 
relief.     Allis  v.  Hall,  76  Conn.  329. 

1  Winfield  v.  Bacon,  24  Barb.  154. 

2  See  Sloane  v.  Clauss,  64  Ohio, 
125. 

3  Trenton,  etc.,  v.  McKelway,  8 
N.  J.  Eq.  84;  Somerville  Coramrs.  r. 
Johnson,  36  Id.  211.  See,  also,  for 
other  instances  of  relief  in  cases  of 
trust,   Hunt  v.  Freeman,   1  Hamm. 


490;  Symons  v.  Reid,  5  Jon.  Eq.  327; 
North  .\m.  Coal  Co.  v.  Dyett,  7 
Paige  Ch.  1;  Kerr  on  Injunctions, 
Chap.  XI. 

•»  Kerr  on  Injunctions,  Chap.  XIV. 
See,  also,  Hubbard  v.  Jasinski,  46 
111.  160;  Clagett  v.  Salmon,  5  Gill  & 
J.  314;  Curd  v.  Wunder,  5  Ohio  St. 
92;  Smithurst  v.  Edmunds,  14  N.  J. 
Eq.  408. 


CH.  II.].  INJUNCTIONS.  589 

diction,  and  the  circumstances  under  which  these  equities  will 
be  enforced,  were  attempted  to  be  pointed  out  and  discussed. 

In  addition  to  the  general  relief  which  is  afforded  by  bills  filed 
expressly  to  assert  these  equities,  a  Court  of  Chancery  will  inter- 
fere by  injunction  to  restrain  parties  from  asserting  legal  rights 
by  action  at  law  to  the  prejudice  of  equitable  rights.  Thus,  if  an 
instrument  which  forms  the  evidence  of  the  title  of  a  party  has 
been  lost  through  accident,  the  relief  required  will  obviously 
differ  with  the  position  of  the  plaintiff  in  respect  to  the  property.^ 
If  he  is  out  of  possession,  he  will  obtain  complete  relief  by  filing 
a  bill,  because  the  decree  will  then  be  evidence  of  his  title.  But 
if  he  is  in  possession,  and  is  the  defendant  in  an  action  at  law,  the 
only  relief  which  he  needs  is  an  order  restraining  the  other  party 
from  setting  up  his  title.  This  can  be  accomplished  only  by  the 
writ  of  injunction;  which  may  accordingly  be  obtained  in  such  a 
case.^  So  also  for  the  purpose  of  carrying  out  the  general  prin- 
ciple that  equity  will  look  with  disfavor  upon  a  contract  which  is 
illegal  or  against  the  policy  of  the  law  or  the  provisions  of  a  stat- 
ute and  which  has  been  already  noticed  under  the  head  of  Fraud, 
a  Court  of  Chancery,  where  a  judgment  at  law  has  been  obtained 
in  such  a  transaction,  will  prevent  its  enforcement  by  injunction.^ 
These  instances  will  serve  to  show  the  necessity  for  this  species 
of  equitable  remedy  in  the  three  cases  of  accident,  mistake,  and 
fraud.  It  may  be  added  here  that  to  obtain  complete  justice  it 
is  sometimes  necessary  that  the  re-execution  or  reformation  of 
documents  should  be  ordered,  or  that  instruments  should  be 
delivered  up  and  cancelled.  This  subject  will  be  noticed  in  the 
succeeding  chapter. 

The  writ  of  injunction  is  also  used  for  the  purpose  of  protect- 
ing and  enforcing  the  eciuities  of  notice,  estoppel,  conversion, 
election,  and  adjustment,  wherever  those  rights  are  in  danger  of 
being  injuriously  affected  by  the  proceedings  of  a  conmion-law 
court.  Thus,  a  party  may  be  restrained  by  injunction  from  as- 
serting in  an  action  at  law  a  legal  title  against  an  equitable  title 
of  which  he  had  notice ;  ■*  or  from  setting  up  some  right  or  title 

1  See  Burnt  Records  Act  in  Illinois;  nient.     Nibert  v.  Baghurst,  47  N.  J. 

Harding  v.  Fuller,  40  111.  App.  643.  Eq.  201.     See  Butch  v.  Lash,  4  la. 

^  See  Maps  v.  Cooper,  39  X.  J.  Eq.  215. 

.UP).      Where    the    vendee    has    ac-  3  Skipwith    v.    Strother,    3    Rand, 

([uired    only    an    equitable    interest  214;  Boddie  v.  Brewing  Co.,  204  111. 

equity  will  restrain  the  vendor  from  3r)2;  ante,  §  22i5. 

proceeding  on  a  judgment  in  eject-  *  Borie   r.   Satterthwaite,    180   Pa. 


590 


INJUNCTIONS. 


[part  III. 


from  the  enforcement  of  which  he  ought  to  be  estopped  in  equity 
by  some  previous  conduct  or  action  on  his  part;  or  from  violating 
in  common-law  actions  rights  acquired  under  the  equitable  doc- 
trines of  conversion  and  election ;  or  from  disturbing  those  rights 
and  duties  which  grow  up  under  the  general  head  of  adjustment, 
and  exhibit  themselves  in  the  equities  of  subrogation,  exonera- 
tion, contribution,  and  marshalling.^ 

41*2.  Equitable  remedies  assisted. 

Injunctions  to  restrain  proceedings  at  law  are  granted  not 
only  in  those  cases  in  which  equitable  titles  or  equitable  rights 
are  in  danger  of  being  disregarded,  but  also,  in  some  instances, 
where  more  complete  justice  between  the  parties  may  be  effected 
by  an  equitable  remedy.^  Thus,  a  man  against  whom  an  action 
has  been  brought  for  a  matter  of  account  or  for  that  which  is  the 
result  of  an  account,  has  a  right,  on  making  out  a  proper  case, 
to  ask  a  court  of  equity  to  have  an  account  there  taken,  on  the 
ground  that  the  remedy  at  law  is  less  complete  than  the  remedy 
in  equity.  As  a  corollary  to  this  right,  the  complainant  has  the 
further  privilege  of  asking  for  an  injunction  to  restrain  the  suitor 
in  the  common-law  court  from  proceeding  with  the  action  of  ac- 
count— if  any  has  been  there  instituted.^ 

So,  too,  where  one  of  the  parties  to  a  common-law  action  de- 
sires to  obtain  discovery  from  his  adversary,  the  jurisdiction  of 
a  ( 'ovu't  of  (/hancery  will  be  exorcised  to  restrain  the  other  party 
from  proceeding  with  the  action  until  discovery  is  obtained.'' 

When  the  equitable  remedy  by  specific  performance  has  been 
invoked,  the  court  will  not  ])ermit  an  action  at  law  to  proceed 
for  the  same  subject-matter,  and  the  complainant,  therefore, 
will  be  restrained  from  proceeding  at  law  for  damages.^  The 
defendant  in  the  suit  may  also,  by  injunction,  be  restrained  from 
withdrawing  the  subject  of  the  bill  from  the  jurisdiction  of  the 


542;  Oconto  Co.  v.  Lundquist,  11!) 
Mich.  264. 

'  Ferrin  v.  Errol,  59  N.  H.  234; 
("onklin  v.  Wehrman,  38  Fed.  Rep. 
S74. 

^  See  Joyce  on  Injunctions,  1053 
(Part  II.);  note  to  Earl  of  Oxford's 
Case,  2  Lead.  Cas.,Eq.  613  (4th  Eng. 
ed.);  Chicago,  M.  &  St.  P.  Ry.  v. 
Pullman  Palace  Car  Co.,  49  Fed.  Rep. 


409;  Commercial  Bank  v.  Cabell,  96 
Va.  552. 

^  Anderson  v.  Noble,  1  Drew.  143. 

4  Wynne  v.  Jackson,  2  Russ.  351 ; 
Ld.  Portarlington  v.  Soulby,  3  M.  & 
K.  104;  Kerr  on  Injunc.  27,  28. 

5  Duke  of  Beaufort  v.  Glynn,  3  Sm. 
&  Giff.  213;  Reynolds  v.  Nelson,  6 
Madd.  18;  Prothero  v.  Phelps,  2  Jur. 
(n.  s.)  173. 


CH.  II.] 


INJUNCTIONS. 


591 


court;  as  where  (for  example)  a  bill  is  filed  for  the  specific  per- 
formance of  the  sale  of  a  ship,  she  may  be  restrained  from  leaving 
port.^ 

A  court  of  equity  will  not  enjoin  criminal  proceedings,-  un- 
less they  are  instituted  by  a  party  to  a  suit  already  pending  Ije- 
fore  it,  and  to  try  the  same  right  that  is  in  issue  there. ^ 

413.  Tnjiiiictioiis  to  prevent  vexatious  litigatiou  ;  election 
between  remedies. 

A  court  of  equity  frequently  interferes  by  injunction  to  re- 
strain proceedings  at  law  for  the  purpose  of  preventing  unneces- 
sary or  vexatious  litigation.  This  it  does  by  compelling  a  party 
to  elect  between  t\\  o  remedies;  by  restraining  a  party  from  bring- 
ing an  action  in  another  court  after  a  court  of  equity  has  once 
obtained  possession  of  a  cause;  by  putting  a  stop  to  repeated 
attempts  to  litigate  the  same  question ;  and  by  interfering  to  pro- 
tect a  party  who  is  liable  to  discharge  some  debt,  duty,  or  obliga- 


1  Hart  V.  Herwig,  L.  R.  8  Ch.  860. 
See,  also,  Home  Ins.  Co.  v.  Howell,  24 
N.  J.  Eq.  238;  Campbell  v.  Ernest, 
62  Hun,  620. 

2/n  re  Sawyer,  124  U.  S.  210; 
Davis,  etc.,  Co.  v.  Los  Angeles,  189 
U.  S.  217;  Porter  v.  Fall,  34  Ark. 
375;  and  see  post,  §  424;  Hemsley  v. 
Meyers,  45  Fed.  Rep.  283;  World's 
Columbian  Exposition  Case,  18  U.  S. 
App.  42;  Pleasants  v.  Smith,  90 
Miss.  440;  City  of  Bainbridge  v. 
Reynolds,  111  Ga.  758;  Paulk  r. 
Mayor  of  Sycamore,  104  Id.  24;  State 
ex  rel.  v.  Wood,  155  Mo.  425;  Os- 
born  V.  Charlevoix  Circuit  Judge, 
114  Mich.  655.  See,  for  an  excep- 
tional case,  The  City  of  Denver  ;;. 
Beede,  25  Colo.  172;  Brown  r. 
Mayor,  140  Ala.  590,  even  although 
it,  is  alleged  irreparable  damage  will 
\)e  inflicted.  Old  Dominion  Tele- 
graph Co.  V.  Powers,  140  Ala.  220; 
Logan  V.  Cable  Co.,  157  Fed.  Ri'i). 
570.  Equity  will  not,  as  a  general 
rule,  interfere  by  injunction  with 
criminal  proceedings;  but  when  a 
statute  or  municipal  ordiiiance  has 


once  been  declared  illegal  by  a  court 
of  law  of  competent  jurisdiction,  and 
other  prosecutions  thereunder  are 
begun  or  threatened  which  will  re- 
sult injuriously  to  one  in  the  en- 
joyment of  his  civil  rights  of  prop- 
erty in  which  he  is  protected  by 
general  law,  equity  will  interfere  by 
injunction  to  restrain  the  same. 
Block  V.  Crockett,  61  W.  Va.  421. 
And  an  injunction  will  issue  to  re- 
strain the  State  Dairy  and  Food 
('ommissioner  from  placing  in  the 
hands  of  every  dealer  in  the  state  a 
bulletin  which  in  effect  threatens 
them  with  prosecution  in  case  they 
made  use  of  defendant's  products  in 
a  form  in  which  they  are  lawfully 
sold.  Pratt  Food  Co.  v.  Bird,  148 
Mich.  631. 

3  In  re  Sawyer,  124  U.  S.  210,  per 
Mr.  Justice  Gray.  See,  also,  Ar- 
buckle  V.  Blackburn,  51  C.  C.  A.  122, 
and  the  language  of  Mr.  Justice  Shiras 
in  Harkrader  v.  Wadley,  172  U.  S. 
166,  citing  Mayor  of  York,  v.  Pilk- 
ington,  2  .\tk.  302,  and  Lord  Monta- 
gue V.  Dudman,  2  Vesey,  396. 


592  INJUNCTIONS.  [part  III. 

tion  from  vexatious  suits,  l)y  t\\o  or  more  parties  severally  claim- 
ing to  be  entitled  to  the  benefit  of  such  debt,  duty,  or  obligation. 
As  to  the  first  of  the  above  instances  of  equitable  interference, 
it  will  be  sufficient  to  say,  that  a  Court  of  Chancery  will  not 
permit  a  man  to  proceed  both  in  law  and  in  equity  at  the  same 
time  in  respect  to  the  same  demand,  but  will  compel  him  to  elect 
in  which  court  he  will  proceed.^  To  this  rule  there  appears  to  be 
but  one  exception — viz.,  the  case  of  a  mortgagee  who  is  entitled 
to  enforce  all  his  remedies  at  once.  He  may  foreclose  the  mort- 
gage, and,  at  the  same  time,  proceed  upon  the  accompanying 
bond.- 

414.  Injunctions  after  the  court  has  assumed  jurisdiction 
of  a  cause. 

After  a  court  of  equity  has  once  got  possession  of  a  cause,  it 
will  not  suffer  any  of  the  litigating  parties  to  resort  to  another 
tribunal.^  Either  a  plaintiff  or  defendant  who  attempts  to  do 
so  may  be  restrained  by  a  motion  in  the  cause.^  Thus  a  man 
who  has  filed  a  bill  for  specific  performance  is  bound  to  submit 
his  claim  for  damages  to  the  judgment  of  the  court,  and  may 
not  proceed  at  law  otherwise  than  by  leave  of  the  court. ^  And 
so,  also,  in  a  suit  for  the  administration  of  assets,  after  a  decree 
has  been  made,  the  court  will  not  suffer  a  creditor  to  institute 
])roceedings  at  law.  Before  a  decree  is  made,  under  which  a 
creditor  may  come  in  and  ])rove  his  debt,  the  court  will  not 
hinder  a  creditor  from  pursuing  his  legal  n^medies.  But  after 
such  a  decree  is  entered,  he  may  be  restrained  from  the  action  at 
law.^ 

415.  Bills  of  Peace,  two  classes  ;  assertion  of  a  common 
right. 

Ecjuity  interferes  by  injunction  to  restrain  repeated  attempts 
to  litigate  the  same  right.  Cases  of  this  kind  are  usually  grouped 
together  in  one  class,  under  the  head  of  bills  of  peace.  These 
bills  of  peace  are  of  two  kinds,  and  are  filed  either  (first)  to  pre- 

1  Hogue  ?'.  Curtis,  1  J.  &  W.  429;  *  Reynolds  v.  Nelson,  6  Madd.  18; 
Fennings  v.  Humphery,  4  Beav.  1;  Frank  v.  Basnett,  2  My.  &  K.  618. 
Kerr  on  Injunctions,  103.  See,  also,  Spink  v.  Francis,  19  Fed. 

2  Schoole  V.  Sail,  1  Sch.  &  Lef.  176;  Rep.  670. 

Taylor  r.  Waters,  1  My.  &  Cr.  266;  5  Reynolds  ?;.  Nelson;  Frank  v.  Bas- 

Kerr  on  Injunctions,  105,  106;  Van  nett,  supra. 

Vrankin  v.  Roberts,  7  Del.  Ch.  16.  ^  Kerr  on  Injunctions,  107. 

3  Alexander's  Estate,  214  Pa.  369. 


I 


CH.  II.] 


INJUNCTIONS. 


o93 


vent  the  vexatious  recurrence  of  litigation  by  a  numerous  class 
insisting  upon  the  same  right;  or  (second)  to  prevent  the  same 
individual  from  reiterating  an  unsuccessful  claim. ^ 

Bills  of  peace  of  the  first  class  occur  where  there  is  one  general 
common  right  to  be  established  against  several  or  a  number  of 
distinct  persons,  whether  one  person  claims  or  defends  a  right 
against  many,  or  many  claim  or  defend  a  right  against  one.^  In 
such  a  case  a  court  of  equity  will  interfere  to  prevent  multiplicity 
of  suits,  and  instead  of  suffering  parties  to  be  harassed  by  a  num- 
ber of  separate  suits,  each  of  which  only  decides  the  particular 
right  in  question  between  the  plaintiff  and  defendant  thereto, 
will  at  once  determine  the  general  right  by  decree.^  The  in- 
stances of  such  bills,  usually  given,  were  where  the  lord  of  a 
manor  claimed  a  right  against  the  tenants,  or  the  tenants  claimed 
a  common  right  against  the  lord ;  or  where  a  parson  claimed  tithes 
against  his  parishioners,  or  the  parishioners  alleged  a  modus 
against  the  parson.^ 


416.  >%effield   Wafer  Works  v.  Yeomans. 

An  instance  of  a  more  practical  character,  in  modern  times, 
occurred  in  the  case  of  the  Sheffield  Water  Works  v.  Yeomans.^ 
The  reservoir  of  the  Sheffield  ^^'ater  Works  had  burst  and  oc- 
casioned an  inundation,  by  which  the  property  of  a  large  num- 
ber of  persons  had  been  injured.  Under  an  act  of  Parliament, 
passed  to  meet  the  case,  certificates  for  damages  were  to  be  issued 
to  the  property-owners,  which  entitled  the  holder,  after  com- 
pliance with  certain  formalities,  to  a  claim  against  the  company 
in  the  nature  of  a  judgment.  A  difference  of  opinion  afterwards 
arose  between  the  commissioners  as  to  whether  their  powers  had 
not  expired;  and  a  large  number  (1500)  of  certificates  were  de- 
livered by  some  of  the  commissioners  to  Yeomans,  who  was  the 

1  Adams's  Doct.   of   Equity,    199;      sons  who  were  owners  of  separate 


Sharon  v.  Tucker,  144  U.  S.  533,  541, 
542. 

2  Smith  V.  Bank,  69  N.  H.  254. 

3  Cadigan  v.  Brown,  120  Mass.  493; 
Smith  V.  Smith,  148  Id.  1;  Lonsdale 
Co.  V.  Woonsocket,  21  R.  I.  498; 
Att.-Gen.  v.  Pater.son,  58  N.  J.  Eq. 
1 ;  City  of  Albert  Lea  v.  Nielsen,  83 
Minn.  246;  Kinkaid  r.  Hiatt.  24  Neb. 
.")62.  See  Northcutt  v.  Turney,  101 
Ky.  314,  for  a  case  where  two  per- 

38 


pieces  of  property  were  permitted  to 
file  a  joint  bill  against  a  common 
tort-feasor  to  protect  a  coininoii  in- 
terest. Fairfield  v.  Southport  Nat. 
Bank,  77  Conn.  423;  Muncie  Gas  Co. 
V.  Muncie,  160  Ind.  97;  Jordan  v. 
Telegraph  Co.,  69  Kan.  140;  Con- 
solidated Gas  Co.  V.  New  York,  157 
Fed.  Rep.  849. 

*  Adams's  Doct.  of  Equity,  199. 

5  L.  R.  2  Ch.  8. 


594 


INJUNCTIONS. 


[part  III. 


town  clerk,  for  distribution.  A  bill  was  then  filed  against  Yeo- 
mans  and  five  of  the  persons  named  in  the  certificates  on  behalf 
of  themselves  and  of  all  others;  and  a  demurrer  to  this  bill  was: 
overruled.  "It  seems  to  me,"  said  Lord  Chancellor  Chelmsford, 
"  to  be  a  very  fit  case,  by  analogy  at  least,  to  a  bill  of  peace,  foj-  a 
court,  of  equity  to  interpose  and  prevent  the  unnecessary  expense 
and  litigation  which  would  be  thus  occasioned,  and  to  decide, 
once  for  all,  the  validity  or  invalidity  of  the  certificates  upon 
which  the  rights  of  all  the  parties  depend."  ^ 

417.  General  rules  as  to  Bills  of  Peace  of  the  first  class  ; 

Phillips  V.  Hudson. 

In  general,  in  order  that  a  bill  of  peace  may  be  maintained, 
the  complainant  nmst  first  have  established  his  right  at  law; 
and  a  court  of  equity  will,  if  necessary,  direct  an  issue  to  be  tried 
for  this  purpose.^ 

To  sustain  a  bill  of  peace  the  right  must  be  one  common  to 
all ;  hence  such  a  bill  will  not  lie  against  independent  trespassers 
who  have  no  common  claim — as,  for  example,  against  several 
booksellers  who  have  infringed  a  copyright,  or  against  several 
persons  who  have  at  different  times  obstructed  a  ferry.*'' 

Moreover,  it  must  appear  that  the  rights  of  all  the  parties  in- 
volved in  the  subject-matter  of  the  controversy  can  be  as  fully 
and  completely  determined  in  such  single  suit  as  they  could  be 
in  the  several  suits. ^ 

Nor  (it  has  been  held)  will  a  bill,  in  the  nature  of  a  bill  of  peace, 
lie  to  enjoin  the  enforcement  of  a  tax  under  the  revenue  laws, 
in  favor  of  a  number  of  persons,  joined  as  complainants,  whose 
only  interest  in  common  is  in  resisting  the  tax,  they  having  no 
conmion  interest  in  the  subject  on  which  it  is  levied.^    But  more 


lid.  11. 

2Tenham  v.  Herbert,  2  Atk.  484; 
Mitford's  PI.  169;  Eldridge  r.  Hill, 
2  Johns.  Ch.  281;  Bond  v.  Little,  10 
Ga.  395;  Morgan  r.  Smith,  11  111.  194; 
Gunn  V.  Harrison,  7  Ala.  585;  Lowe 
V.  Lovvry,  4  Ham.  77;  Harmer  ?). 
Gwynne,  5  McLean,  .313;  Paterson, 
etc.,  R.  Co.  V.  Jersey  City,  9  N.  J. 
Eq.  434;  Smith  v.  McConncU,  17  111. 
135. 

3  Adams's  Doct.  of  Eq.  200.  See, 
also,  Randolph  v.  Kinney,  3  Rand. 


394;  Miller  v.  Grandy,  13  Mich.  540; 
McHenry  v.  Hazard,  45  Barb.  657; 
Turner  r.  City  of  Mobile,  135  Ala. 
73;  City  of  Albert  Lea  v.  Nielsen,  80 
Minn.  101;  Webb  v.  Parks,  110  Ga. 
639;  Ducktown  Sulphur  Co.  v.  Fain, 
109  Tenn.  57;  Illinois  Steel  Co.  v. 
Schroeder,  133  Wis.  561. 

4  Eureka  &  K.  R.  R.  Co.  v.  Cal.  & 
N.  Ry.  Co.,  48  C.  C.  A.  517.  See 
Hale  V.  .\llinson,  188  U.  S.  56. 

5  Cutting  V.  Gilbert,  5  Blatch.  259; 
Schulenberg-Boeckler  Lumber  Co.  v. 


CH.  II.] 


INJUNCTIONS. 


595 


recent  cases  have  laid  down  a  somewhat  broader  rule.  Thus 
where  the  owners  of  distinct  parcels  of  land  affected  by  the  same 
tax  joined  in  a  bill  to  set  it  aside;  ^  or  where,  even,  there  is  a  com- 
mon interest  in  the  relief  sought, ^  the  jurisdiction  has  been  sus- 
tained.' 

When  a  bill  of  peace  is  filed  for  the  purpose  of  establishing 
a  right  in  which  many  are  interested,  it  must  be  filed  on  behalf 
of  all,  and  will  not  lie  to  estabUsh  the  right  of  the  complainant 

only.^ 

Thus,  one  commoner  may  file  a  bill  on  behalf  of  himself  and 
of  all  others  to  establish  a  right  of  common,  as  against  the  lord; 
but  he  cannot  file  a  bill  to  establish  simply  his  individual  right. 
The  answer  to  such  a  complainant  is:  "If  this  is  a  disturbance 
of  your  common,  why  do  you  not  bring  your  action?  You  may 
maintain  an  action;  prove  your  right  of  common,  prove  that  the 
lord  has  invaded  that  right,  and  you  will  recover  at  law."  ^ 

It  is  enough,  how^ever,  if  one  general  question  exists  which  is 
to  be  determined.  Thus  a  number  of  persons  engaged  in  the 
same  occupation  (plumbers)  may  join  in  testing  the  legahty  of 
an  ordinance  requiring  them  to  take  out  a  license ;  ®  or  different 
riparian  owners  of  distinct  parcels  of  land  may  unite  to  enjoin 
a  higher  riparian  owner  from  diverting  or  polluting  the  stream;' 
or  a  person  may  in  one  suit  assert  a  right  of  way  against  several 
abutting  owners  whose  interests  are  distinct.^     In  Milwaukee 


Hayward,  20  Fed.  Rep.  422;  High  on 
Injunctions,  213;  Tribette  v.  Rail- 
road Co.,  70  Miss.  182.  See,  how- 
ever, Railroad  Co.  v.  Garrison,  81 
Miss.  257,  where  Tribette  v.  Railroad 
Co.  is  distinguished;  Whitlock  v. 
R.  R.  Co.,  91  Miss.  779. 

1  Thomas  v.  Auditor  General,  120 
Mich.  535. 

2  Lonsdale  Co.  v.  City  of  Woon- 
socket,  21  R.  I.  498;  Virginia-Caro- 
lina Chem.  Co.  r.  Home  Ins.  Co.,  51 
CCA.  21. 

3  See,  also.  City  of  Chicago  v.  Col- 
lins, 175  111.  445;  German  All.  Ins. 
Co.  V.  Van  Cleave,  191  111.  410,  and 
Brown  et  al.  v.  Canal  and  Reservoir 
Co.,  26  Colo.  GO.  But  in  some  of 
these  cases  the  bill  was  filtMl  on  be- 
half not  only  of  the  complainants  but 


of  all  others  entitled  to  the  same 
right  and  suffering  from  the  same 
violation  of  it.  See  cases  citccl  in 
next  succeeding  notes.  Spiegler  v. 
City  of  Chicago,  216  111.  1 14. 

*  Phillips  V.  Hudson,  L.  R.  2  Ch. 
243. 

5  Id.  See,  also,  Eldridge  v.  Hill,  2 
Johns.  Ch.  271;  Denton  v.  Jack.son, 
Id.  120  (where  it  was  held  that  one 
inhabitant  could  not  file  a  bill  on  be- 
half of  the  town) ;  Tenham  (.'.  Herbert , 
2  Atk.  483;  Cowpcr  v.  Clerk,  3  P. 
Wms.  155;  High  on  Injunctions,  §  54. 

6  Wilkie  V.  City  of  Chicago,  188  111. 
444. 

7  Strobel  v.  Kerr  Salt  Co.,  164  N.  Y. 
303. 


*  Stockwell 
468. 


Fitzgerald,    70  Vt. 


596 


INJUNCTIONS. 


[part  III. 


Electric  Railway  &  Light  Co.  v.  Bradley,^  where  a  question  had 
arisen  as  to  the  legal  rate  of  fare,  the  defendants  and  others  re- 
peatedly refused  to  pay  the  fare  demanded,  were  repeatedly 
ejected  from  cars  and  repeatedly  brought  suits  before  justices  of 
the  peace.^  It  was  held  to  be  a  case  for  equitable  relief  under  this 
liead.  So,  where  a  person  was  in  possession  of  land  with  a  com- 
l)lete  legal  title,  though  not  all  appearing  of  record,  it  was  held 
that  he  was  entitled  to  an  injunction  to  restrain  a  number  of 
ejectment  suits  brought  against  him  as  to  a  portion  of  the  prem- 
ises, since  the  question  was  the  same  as  to  all  of  the  premises,  and 
might  be  determined  by  the  proceeding  in  chancery.^  But  where 
1  he  relief  can  be  equally  afforded  by  a  court  of  law  by  means  of 
a!i  order  consolidating  the  suits,  an  injunction  will  be  refused.'* 


418.  Kills  of  Peace  of  the  second  class. 

Bills  of  peace  of  the  second  class,  viz.,  those  wherein  the  plain- 
tiff seeks  to  restrain  the  defendant  from  reiterating  an  unsuc- 
cessful claim,  originated  in  the  fact  that  a  verdict  in  an  action 
of  ejectment  was  not  conclusive  upon  the  rights  of  the  real  par- 
ties to  the  controversy,  and  successive  actions  might,  therefore, 
be  brought  indefinitely  upon  the  same  title.  In  some  of  the 
United  States  this  rule  has  been  altered,  and  two  verdicts  in 
favor  of  the  same  title  are  deemed  conclusive  upon  the  right. 
In  order,  however,  to  remedy  the  evil  as  it  existed  at  common 


I  108  Wis.  467.  See,  also,  South- 
ern Pacific  Co.  v.  Robinson,  l'.V2  Cal. 
408. 

-  A  bill  by  two  street  railway  com- 
panies to  enjoin  the  enforcement  of 
an  ordinance  regulating  the  over- 
crowding of  .street  cars  cannot  be 
maintained  upon  the  ground  of  pre- 
venting a  multiplicity  of  suits  where 
the  two  complainants,  operating  in 
different  parts  of  the  city,  furnish 
practically  all  of  the  street  car  serv- 
ice of  the  city,  and  where  so  far  as 
appears  from  the  bill,  the  only  dis- 
pute is  between  these  two  complain- 
ants and  the  city,  ('ity  of  Chicago 
V.  Chicago  City  Ry.  Co.,  222  111. 
560. 

3  Woods  V.  Monroe,  17  Mich.  2;i8; 
Bailey  v.  Tillinghast,  40  C.  C.  A.  99. 


It  is  a  well-established  rule  in  equity 
pleading,  that  in  certain  cases  bills 
may  be  filed  by  one  or  more  persons 
on  behalf  of  themselves  and  all  others 
standing  in  a  similar  position  and 
claiming  the  same  right.  Such  are 
creditors'  bills,  and  bills  filed  by  one 
or  more  stockholders  in,  or  creditors 
of,  a  company  against  projectors  or 
directors.  See  Watts's  Appeal,  78 
Pa.  :370;  Spering's  Appeal,  71  Id.  24; 
Warner  v.  Hopkins,  111  Id.  332;  City 
of  .\lbert  Lea  v.  Nielsen,  83  Minn. 
240,  and  Story's  Equity  Pleadings, 
§§  97-136,  where  the  subject  is  dis- 
cussed. 

4  Peters  r.  Prevost,  1  Paine  C.  C. 
64;  National  Park  Bk.  r.  CioddanI,  62 
Hun,  31;  Id.  131  N.  Y.  494;  Mayor  of 
Gainesville  v.  Dean,  124  Ga.  750. 


(H.  11.] 


INJUNCTIONS. 


.')<)] 


law,  chancery  entertains  a  bill  to  enjoin  further  litigation,  after 
repeated  trials  at  law.  This  jurisdiction  was  established  by  a 
case  in  the  House  of  Lords,  and  is  now  unquestionable.^  But 
where  the  causes  of  action  are  different,  equity  will  not  inter- 
fere, although  the  question  may  be  the  same.^ 

419.  Bills  of  Interpleader. 

The  only  instance  wherein  a  court  of  equity  interferes  to  pre- 
vent vexatious  litigation,  which  yet  remains  to  be  noticed,  is 
the  case  wherein  a  bill  is  filed  to  protect  a  party  who  is  liable 
to  discharge  some  de))t,  duty,  or  obligation,  from  suits  by  two  or 
more  persons  severally  claiming  to  be  entitled  to  the  benefit  of 
such  debt,  duty,  or  obligation.  Bills  for  this  object  are  called 
bills  of  interpleader.  The  ground  upon  which  this  jurisdiction 
rests  is  that  a  mere  stakeholder  ought  to  be  protected  as  against 
conflicting  claimants.^  The  justice  of  this  rule  was  recognized 
at  common  law,  but  its  application  was  exceedingly  limited, 
being  confined  to  the  old  actions  of  quare  impedit  and  writ  of 
right  of  ward,  and  to  the  single  personal  action  of  detinue,  and 
then  only  in  the  two  cases  of  bailment  and  accident.^ 

The  right  of  interpleader  at  law  has  been  extended  in  England  •' 


1  Earl  of  Bath  v.  Sherwin,  4  Bro. 
P.  C.  (Tomlin)  373.  See,  also,  Bare- 
foot V.  Fry,  Bunb.  158;  Letton  v. 
Goodden,  L.  R.  2  Eq.  123;  Marsh  v. 
Reed,  10  Ohio,  347;  Craft  r.  Lathrop, 
2  Wall.  Jr.  103;  Dedman  v.  Chiles,  2 
Monr.  426;  Paterson,  etc.,  R.  Co.  r. 
Jersey  City,  9  N.  J.  Eq.  434;  Thomp- 
son's App.,  107  Pa.  559;  Nicoll  r. 
The  Trustees  of  Huntingdon,  1  Johns. 
Ch.  166;  Third  Avenue  R.  Co.  v. 
New  York,  54  N.  Y.  159;  Patterson  v. 
McCamant,  28  Mo.  210;  Porter  v. 
Reed,  123  Id.  587;  Pratt  v.  Kendig, 
128  111.  293;  Boston  and  Montana 
Consolidated  Copper  and  Silver  Min- 
ing Co.  V.  Montana  Ore  Purchasing 
Co.,  188  U.  S.  632;  Lyons  v.  Im- 
porters' Bank,  214  Pa.  428. 

2  Mount  Zion  v.  Gillman,  6  Biss. 
479.  See,  however,  Town  of  Weston 
V.  Ralston,  48  W.  Va.  170. 

3  Crawshay  i'.  Thornton,  2  My.  & 
Cr.   li   Kerr  on  Injunctions,    118  et 


seq.;  Farley  v.  Blood,  10  Foster,  354; 
Bedell  v.  Hoffman,  2  Paige  Ch.  199; 
Cady  V.  Potter,  55  Barb.  463;  Lincoln 
V.  Rutland  R.  Co.,  24  Vt.  639;  Morse 
V.  Stevens,  131  Mass.  389;  Mount 
Holly  Co.  V.  Ferree,  17  N.  J.  Eq.  117; 
Packard  v.  Stevens,  58  Id.  489;  Hast- 
ings V.  Cropper,  3  Del.  Ch.  105; 
Strange!'.  Bell,  11  Ga.  103;  Burton 
V.  Black,  32  Id.  53;  Conley  v.  Ala- 
bama Gold  Life  Ins.  Co.,  67  Ala.  472; 
Harris  Banking  Co.  v.  Miller,  190 
Mo.  640;  Pope  v.  Ames,  20  Oreg.  199. 

4  Story's  Equity  Jurisp.  §§801- 
804.  The  common-law  process  of 
garnishment  was  in  the  nature  of  an 
interpleader.  See  2  Reeves's  Hist. 
Eng.  Law,  pp.  635,  636  (Finlason's 
ed.)  for  a  history  of  its  use. 

5  1  and  2  Wil.  IV.,  c.  58;  1  and  2 
Vict.,  c.  45,  §  2;  23  and  24  Vict.,  c. 
126,  §  12.  See  Best  v.  Hayes,  1  Hurl. 
&  Colt.  718;  Tanner  v.  European 
Bank,  L.  R.  1  Ex.  261;  Kerr  on  In- 


598 


INJUNCTIONS. 


[part  III. 


and  in  many  of  the  United  States  by  statute ;  but  in  some  of  the 
States  the  remedy  is  in  equity  alone,  and  in  others  the  equitable 
remedy  is  necessarily  invoked  in  some  cases. ^ 

4'^0.  Bills  must  show  title  in  two  claimants. 

A  bill  of  inteipleador  must  show  title  in  two  claimants.  Thus, 
a  sheriff  who  seizes  goods  on  execution  cannot  file  a  bill  of  inter- 
pleader to  determine  adverse  claims  existing  to  the  property; 
for  the  defendant  in  the  execution  has  no  right  to  hold  against 
the  sheriff's  levy;  whereas,  so  far  as  the  adverse  claimant  is  con- 
cerned, the  sheriff  is  simply  a  wrong-doer.  It  has,  therefore,  been 
found  necessary  to  protect  sheriffs  under  these  circumstances 
by  special  statutes. 

But  where  the  contest  is  between  the  execution-creditor  anc- 
a  jmi'ty  who  claims  title  to  the  fund  realized  by  a  sheriff",  a  bill 
of  interpleader  will  lie.  Thus,  in  Child  v.  Mann,  the  sheriff,  who 
was  in  possession  of  goods  under  a  fieri  facias,  was  served  with 
notice  of  an  adjudication  in  bankruptcy  against  the  debtor,  and 
notice  by  the  assignee  to  quit  possession.  The  execution-creditor 
then  obtained  an  order  on  the  sheriff"  to  make  return  of  the  writ, 
and  the  sheriff  then  sold  the  goods.  It  was  held  that  the  sheriff" 
was  entitled  to  hie  a  bill  of  interpleader  against  the  assignee  and 
the  plaintiff'  in  the  execution. - 

An  agent  or  attorney  cannot  compel  his  principal  and  a  third 
party  to  interplead,  nor  can  a  tenant  maintain  an  interpleader 
l)ill  against  his  landlord  and  a  stranger;  the  reason  in  these  cases 
being  that  the  attorney,  or  agent,  or  tenant  cannot  be  permitted 
to  controvert  the  title  of  the  party  under  whom  he  holds.'"'  Th ' 
possession  of  a  tenant  is  the  possession  of  the  landlord,  and  it 
would  be  exceedingly  unjust  and  vexatious  to  allow  the  tenant 
to  put  his  landlord  on  the  same  footing  as  a  stranger.  But  a 
tenant  may  always  show  that  his  landlord  has  parted  with  his 


jufictions,  120.  If  one  of  the  claims 
is  legal,  and  any  other  equitable,  the 
remedy  is  exclusively  in  equity. 
Kerr  on  Injunc.  120. 

1  See  Ramsdell  v.  Butler,  60  Me. 
216,  where  the  reasoning  of  the  court 
would  seem  to  do  away  with  the  ne- 
cessity for  bills  of  interpleader  «.s 
filed  by  ihe  stakeholder,  ,and  render  it 
obligatory  upon  one  of  the  claimants 
to  resort  to  equity.    But  the  correct- 


ness   of    this    view    may    well    be. 
doubted. 

2  Child  V.  Mann,  L.  R.  .3  Eq.  806. 

3  Cook  V.  Rosshai,  1  Giff.  167: 
Crane  v.  Burntrager,  1  Cart.  (Ind.) 
16.5;  Whitewater,  etc.,  Co.  v.  ('omo- 
gys,  2  Id.  469;  Nickolson  v.  Knowlcs. 
5  Madd.  47;  Kerr  on  Injunctions,  122 
In  McFadden  v.  Swinerton,  36  Orcg. 
.336,  this  rule  does  not  seem  to  have 
been  followed. 


CH.  II.] 


INJUNCTIONS. 


59S 


title,  and  hence  he  may  file  a  bill  of  interpleader  against  his  land- 
lord, and  one  who  claims  derivatively  from  the  landlord  by  a 
conveyance  subsequent  to  the  commencement  of  the  tenancy.^ 

Nor  will  a  l)ill  of  interpleader  lie  by  a  debtor  against  his  cred- 
itor and  a  thiiil  person  who  claims  the  debt,  not  through  any 
privity  with  the  creditor  l)ut  by  a  title  paramount  to  his." 

421.  Complainants  must  claim  no  interest. 

A  bill  of  intfMplcader  will  not  lie  where  the  plaintiff  claims 
an  interest  in  the  subject-matter  himself.^  Thus,  if  an  action  is 
brought  against  an  auctioneer  for  a  deposit,  he  cannot  maintain 
a  bill  of  interpleader  if  he  insists  upon  retaining  either  his  own 
commission  or  the  duty.^ 

So,  also,  where  an  interpleader  bill  alleged  that  the  interest 
on  a  sum  secured  by  a  policy  is  not  due  from  the  company  by 
whom  the  bill  was  filed,  it  was  held  not  sustainable.^ 

It  is  not  necessar}'  that  the  title  of  both  the  claimants  be 
legal;  one  title  may  be  legal  and  one  equitable,  or  both  equitable.^ 
It  is  essential  to  an  interpleader  that  the  party  seeking  relief 
should  have  incurred  no  independent  liability  to  either  party, 
and  should  have  acknowledged  the  title  of  neither.  If  he  has 
come  under  any  personal  obligation  to  either  of  the  claimants 
in  respect  of  the  specific  property  in  dispute,  independently 
of  the  question  of  title,  so  that  the  whole  of  the  rights  claimed 
by  the  defendants  cannot  be  properly  determined  by  htigation 
between  them,  it  is  not  a  proper  case  for  interpleader.^  The  cases 
of  landlord  and  tenant,  and  princi]oal  and  agent,  already  stated, 
are  illustrations  of  this  rule. 


1  Crawshaj'  v.  Thornton,  2  My.  & 
Cr.  1,  21;  Stuart  v.  Welch,  4  Id.  30.'->; 
Ketcham  v.  Brazil  Block  Coal  Co., 
88  Ind.  515. 

2  Third  Nat.  Bank  v.  Skillings 
Lumber  Co.,  132  Mass.  410. 

3Dohnert's  Appeal,  64  Pa.  311; 
Bridesburg  Mfg.  Co.'s  Appeal,  100 
Pa.  275;  Killian  v.  Effingham,  110 
U.  S.  568.  But  see  McFadden  v. 
Swinerton,  36  Oreg.  336;  ante,  p.  598, 
note  3. 

*  Mitchell  V.  Hayne,  2  Sim.  &  St. 
63. 

5  Bignold  V.  Audland,  11  Sim.  23. 


8  See  Hamilton  v.  Marks,  5  De  C. 
&  Sm.  038;  Lozier's  Exrs.  v.  Van 
Saun's  Admrs.,  3  N.  J.  Eq.  325; 
Yates  r.  Tisdale,  3  Edw.  Ch.  71. 

7  Crawshay  v.  Thornton,  2  My.  & 
Cr.  1;  Pearson  v.  Cardon,  2  Rus.  & 
Myl.  606;  Cochrane  v.  O'Brien,  2  Jo. 
&  Lat.  380;  Desborough  v.  Harris,  5 
De  G.,  M.  &  G.  439,  455;  Cromwell  v. 
Amer.  L.  &  T.  Co.,  57  Hun,  149; 
Wakeman  v.  Kingsland,  46  N.  J.  Eq. 
113;  Conn.  Mut.  Life  Ins.  Co.  v. 
Tucker,  23  R.  I.  1.  Though  the  lia- 
biUty  be  admitted  by  mistake. 
Mitchell  V.  N.  W.  Mfg.  &  Car  Co.,  26 


600  INJUNCTIONS.  [part  III. 

While,  under  a  strict  interpleader  bill,  the  complainant  can 
have  no  affirmative  relief  other  than  that  he  maybe  relieved  from 
the  responsibility  of  conflicting  claims,  yet  bills  in  the  nature  of 
bills  of  interpleader  may  sometimes  be  entertained,  in  wiiicli  the 
complainant  may  have  active  affirmative  relief  beyond  and  in 
addition  to  the  usual  interpleader  decree.^ 

422.  Debt  or  duty  must  be  the  same. 

It  is  also  essential  that  the  debt,  duty,  or  thing  claimed  by 
both  parties  should  be  the  same.-  Thus,  where  a  purchaser  of 
tea  was  sued  by  the  seller  for  the  price,  and  was  also  sued  in  trover 
by  the  person  who  alleged  himself  to  be  the  real  owner,  it  was 
held  not  to  be  a  case  of  interpleader,  for  the  parties  were  not 
seeking  the  same  thing.  The  one  was  endeavoring  to  obtain  the 
l)rice  of  the  goods,  the  other  damages  for  their  conversion."'' 

So,  also,  where  an  auctioneer,  by  direction  of  the  owner,  had 
sold  to  two  persons  successively,  and  had  received  a  deposit 
from  each,  it  was  held  that  the  auctioneer  could  not  support  a 
bill  of  interpleader  against  the  owner  and  the  two  purchasers, 
because,  although  there  was  one  question  in  common  between 
the  purchasers,  viz.,  which  was  to  be  the  purchaser  of  the  estate, 
their  claims  against  the  auctioneer  were  for  two  different  things, 
viz.,  by  each  for  his  own  deposit.  The  bill  was,  therefore,  dis- 
missed as  against  the  second  pui'chaser  with  costs,  and  it  was 
decreed  that  the  seller  and  the  first  purchaser  should  interplead 
as  to  the  first  deposit.'' 

It  is  not  necessary  to  sustain  a  bill  of  interpleader  that  an 
action  be  actually  commenced.  It  is  sufficient  if  claims  have 
been  made  against  the  complainant,  and  he  is  threatened  with 
a  (loul)le  litigation.^ 

When  the  complainant's  right  to  interpleader  is  established 
either  by  admissions  in  the  answer  or  by  proofs,*^  he  is  dismissed 
with  the  costs  of  his  litigation,  which  are  to  be  paid  out  of  the 
fund,  and  the  conflicting  claims  of  the  defendants  are  then  dis- 
])Osed  of  in  the  manner  best  adapted  to  the  circumstances  of  the 
case.    The  bill  is  considered  as  putting  the  defendants  to  contest 

111.  App.  295;  Standleyr.  Roberts,  19  800;  Rauch  v.  Fort  Dearborn  Nat. 

U.  S.  App.  407.  Bank,  223  111.  507. 

1  Illingworth  v.  Rowe,  52  N.  J.  Eq.  ^  Hoggart  v.  Cutts,  Cr.  &  Ph.  197. 
360.                                  ,  5  Richards  v.  Salter,  6  Johns.  Ch. 

2  Hoyt  V.  Gouge,  125  la.  603.  445;  Kerr  on  Injunctions,  120. 

3  Slaney  v.  Sidney,  14  Mees.  &  W.  « Statham  v.  Hall,  Turn.  &  R.  30. 


CH.  II.]  INJUNCTIONS.  601 

their  respective  claims  just  as  a  bill  by  an  executor  or  trustee  to 
obtain  the  direction  of  the  court  upon  the  adverse  claims  of  the 
different  defendants.  If,  therefore,  at  the  hearing  the  question 
between  th(>  defendants  is  ripe  for  a  decision,  the  court  decides  it; 
if  not,  it  directs  an  action  or  an  issue,  or  a  reference  to  a  master, 
as  may  be  best  suited  to  the  nature  of  the  case.  An  issue  or  a 
reference  is  generally  the  most  cheap  and  efficacious  mode  of 
settling  the  controversy  between  the  defendants ;  and  the  expense 
of  an  action  at  law  or  of  an  original  bill  to  be  filed  under  the  di- 
rection of  the  court  can  seldom  be  necessary.^ 

-1:23.  Injunctions  in  aid  of  proceedings  in  Bankruptcy. 

The  Revised  Statutes  of  the  United  States  provide,  in  §  720, 
that  "the  writ  of  injunction  shall  not  be  granted  by  any  court 
of  the  United  States  to  stay  proceedings  in  any  court  of  a  state 
except  in  cases  where  such  injunction  may  be  authorized  by  any 
law  relating  to  proceedings  in  bankruptcy." 

Under  the  former  Act  of  Congress  of  March  2,  1867,  to  "  Estab- 
lish a  Uniform  System  of  Bankruptcy  throughout  the  United 
States,"  injunctions  might  be  granted  to  stay  proceedings  at 
law,  both  for  the  benefit  of  the  creditors  of  the  debtor,  and  for 
the  benefit  of  the  debtor  himself.  Thus,  the  Federal  District 
Courts  could  interfere,  by  injunction,  in  cases  of  involuntary 
bankruptcy,  to  restrain  the  debtor  and  any  other  person,  during 
the  pendency  of  the  rule  to  show  cause,  from  making  any  transfer 
or  disposition  of  the  debtor's  property,  and  from  any  interference 
therewith;  and  the  Circuit  Courts  had  the  power  to  hear  and 
deternune  as  courts  of  equity  all  cases  and  questions  arising  un- 
der the  Act.'  Under  these  sections  a  creditor  might  be  restrained 
from  using  the  process  of  state  courts  where  its  use  would  violate 
or  defeat  the  provisions  of  the  Bankrupt  Act.  As,  for  example, 
if  a  plaintiff  in  a  judgment  were  proceeding  by  execution,  when 
the  judgment  was  confessed,  or  the  levy  thereunder  procured 
to  be  made  with  the  knowledge  on  the  part  of  the  plaintiff  that 
the  defendant  was  insolvent,  or  in  contemplation  of  insolvency, 

1  City  Bank  v.  Bangs,  2  Paige  Ch.  Duke  of  Bolton  v.   Williams,  4  Id. 

572;  Atkinson  v.  Marks,  1  Cow.  696;  297;  Angel  v.  Hadden,  16  Ves.  203. 

Jones  r.  Gilham,  Cooper's  R.  49;   (See  -  Act  of  Congress  of  March  2,  1867, 

Hendry  v.  Key,  1  Dickens.  291,  n.);  14  Stat,  at  Large,  518,  §§  2  and  40. 

Brymer  v.  Buchanan,  1  Cox  Ch.  Cas.  See  Bump's  Law  of  Bankruptcy,  43 

425;  Hodges  v.  Smith,  Id.  357;  Aid-  446,  (lOth  ed.). 
ridge  v.  Thompson,  2  Bro.  C.  C.  149; 


602  INJUNCTIONS.  [fart  III. 

and  with  the  intent  to  give  a  preference,  or  to  defeat  or  delay  the 
operation  of  the  Act.  This  jurisdiction  was  exercised  sometimes 
by  the  District  Court  under  the  provisions  of  the  40th  section, 
and  sometimes  by  the  Circuit  Court  by  virtue  of  the  equity 
powers  confei'red  by  the  2d  section.' 

An  in j miction  to  restrain  an  action  at  law  could  also  be  ob- 
tained for  the  benefit  of  the  bankrupt,  by  virtue  of  the  21st  sec- 
tion of  the  Act,  which  provided  that  no  creditor  whose  debt  was 
provable  under  the  act  should  prosecute  to  final  judgment  any 
suit  at  law  or  in  ecjuity  therefor  imtil  the  question  of  the  debtor's 
discharge  should  have  been  determined.  Before  the  election  of 
an  assignee  this  injunction  can  be  obtained  only  by  the  bank- 
laipt ;  after  such  election  the  assignee  is  the  proper  party  to  ap- 
ply-' 

The  Bankmptcy  Act  of  1898  provides,  in   §  11,  for  a  stay 

of  actions  against  the  person  who  files  a  petition  to  be  adjudged 
a  bankrupt.  The  Act  also  authorizes  the  United  States  courts 
sitting  as  courts  in  bankmptcy  to  make  such  orders  as  may  be 
necessary  for  the  enforcement  of  the  provisions  of  this  Act. 
Under  the  statute  the  proper  Federal  courts  are  entitled  to  issue 
writs  of  injunction  to  stay  further  proceedings  on  the  part  of 
plaintiffs  or  others  in  state  courts  where  such  proceedings  inter- 
fere with  the  exercise  of  bankruptcy  jurisdiction  or  with  the 
proper  marshalling  of  assets  for  distribution  under  such  jurisdic- 
tion. 

The  authority  of  the  Federal  courts  to  interfere  with  pro- 
ceedings in  state  courts  where  such  interference  was  necessai'V 
under  bankmptcy  acts,  was  the  subject  of  discussion  in  Ex  parte 
Christy,'^  and  also  in  Norton  v.  Boyd."*  This  jurisdiction  has  been 
sustained,  not  only  under  the  Act  of  Congress  of  1841,  but  also 
under  that  of  1867  and  that  of  1898.^ 

It  will  be  observed,  however,  by  reference  to  these  authori- 
ties, that  the  Federal  courts  will  not  exercise  this  power  of  in- 

1  Irving   V.    Hughes,    7    Am.    Law  ^  3  Howard,  426. 

Reg.  (n.  s.)  209;  High  on  Injunctions,  5  Ray  v.  Norsworthy,  23  Wall.  12S; 

Chap.   IV.     See,  under  the  English  Factors     &     Traders'     Ins.     Co.     v. 

Act,  Ex  parte  Rumboll,  L.  R.  6  Ch.  Murphy,  111  U.  S.  738;  In  re  Pittel- 

842.  kow,  1  Nat.  Bankruptcy  News,  234; 

2  Brightly 's  Bankruptcy  Act,  49.  92   Fed.    Rep.    901;   In  re   Kellogg, 

3  3  Howard,  293;' and  see,  particu-  121  Fed.  Rep.  333;  57  C.  C.  A.  547; 
larly,  the  language  of  Story,  J.,  on  Black  on  Bankruptcy,  pp.  159  and 
pp.  318  and  319  161. 


(11.  II.] 


INJUNCTIONS. 


()0;-5 


terference  unless  there  is  some  distinct  equity  shown  to  call  it 
into  play. 

424.  In  what  courts  proceedings  will  be  restrained. 

Bf'foro  loavinu;  the  subject  of  injunctions  to  restrain  procoed- 
inj^s  at  law,  it  will  be  jjioper  to  say  a  few  words  as  to  the  question 
"what  are  the  courts  in  which  proceedings  will  be  restrained?" 

Equity  will  interfere  not  only  in  pi'oceedings  in  common-law 
courts,  but  also  to  restrain  parties  to  proceedings  in  ecclesiastical 
courts,^  in  courts  of  admiralty,"  in  foreign  courts,^  and  in  courts 
of  bankruptcy  to  the  extent  of  restraining  a  party  from  com- 
mencing proceedings  in  bankruptcy,^  but  not  to  the  extent  of 
interfering  with  the  distribution  of  the  bankrupt's  estate  after 
the  jurisdiction  of  the  bankrupt  court  has  once  attached. •"'  Nor 
will  a  Court  of  Chancery  restrain  proceedings  in  a  court  of  ad- 
miralty, where  the  latter  tribunal  has  full  power  and  jurisdiction 
to  examine  the  matter.^ 

Proceedings  in  criminal  courts  will  not  be  interfered  with  by 
injunction  unless  the  proceedings  are  commenced  by  a  ])erson 
who  is  also  plaintiff  in  equity,  relative  to  the  same  matter." 

Courts  of  ec^uity  are,  in  general,  unwilling  to  interfere  with 
tribunals  which  derive  their  authority  from  a  distinct  and  in- 
dependent source.  For  instance,  a  court  of  one  state  is  slow 
to  interfere  with  the  tribunals  of  a  sister  state,  and  Federal 


1  Hill  V.  Turner,  1  Atk.  515. 

2  Glascott  V.  Lang,  3  My.  &  Cr.  451 ; 
2  Phillips,  :U0;  Jarvis  v.  Chandler,  T. 
*  R.  :U!). 

'■'  Lord  Portarlington  r.  Soulby,  3 
My.  &  K.  108  (disapproving  of  Lowe 
V.  Baker,  Freem.  125);  Bunbury  v. 
Biinbury,  1  Beav.  318;  Carron  Iron 
("o.  7".  Maclaren,  5  H.  L.  Cas.  41G; 
Graham  v.  Maxwell,  1  MacN.  &  G. 
71;  Baillie  v.  BailUe,  L.  R.  5  Eq.  175; 
Hope  V.  Carnegie,  L.  R.  1  Ch.  320; 
Dehon  r.  Foster,  4  Allen,  545;  Great 
Falls  Mfg.  Co.  V.  Worster,  3  Foster, 
462;  Griggs  r.  Docter,  89  Wis.  161. 
In  Liverpool,  etc.,  Co.  v.  Hunter,  L. 
R.  4  Eq.  62,  and  In  re  Chapman,  15 
Id.  75,  an  injunction  was,  under  the 
circumstances,  refused . 

■*  Attwood  (;.  Banks,  2  Beav.  192. 


5  Thompson  v.  Derham,  1  Hare, 
358;  Morley  v.  White,  L.  R.  S  Ch.  214. 

6  Anon.,  3  Atk.  350. 

7  Holderstaffe  v.  Saunders,  6  Mod. 
16;  Mayor  of  York  v.  Pilkington,  2 
Atk.  302;  New  Home  Sew.  Mach.  Co. 
V.  Fletcher,  44  Ark.  139;  Hargett  r. 
Bell,  134  N.  C.  394.  See,  however, 
Atlanta  v.  Gate  City  Gas  Co.,  71 
Ga.  106,  and  the  Milwaukee  Eloc. 
Ry.  &  Light  Co.  v.  Bradley,  108  Wis. 
467.  See,  also,  Kerr  v.  Corp.  of  Pr(>s- 
ton,  6  Ch.  D.  463,  where  Mayor  of 
York  r.  Pilkington  is  criticised.  For 
a  discussion  of  the  rule  that  courts 
of  equity  have  no  jurisdiction  in  mat- 
ters of  crime,  see  article  in  IS  Am. 
Law  Rev.  599,  and  31  Am.  Law  Reg. 
and  Rev.  782. 


004 


INJUNCTIONS. 


[part  III. 


courts  with  state  courts.^  liut  this  is  a  rule  of  coinity  only, 
and  cannot,  therefore,  be  regarded  as  a  principle  to  which  courts 
of  equity  would  feel  hound  under  all  circumstances  to  adhere. - 

A  court  of  equity  may  sometimes  restrain  proceedings  in  an- 
other coiut  of  ecjuity.-'' 

Thus,  where  there  were  two  claimants  of  a  fund,  and  one  lilcd 
a  bill  against  a  stakeholder  without  making  the  othei'  a  jiarty, 
the  stakeholder  was  held  to  be  entitled  to  file  an  interpleader 
bill,  and  restrain  the  proceedings  in  the  former  suit.*^  And  so. 
also,  where  it  is  shown  that  the  decree  in  another  court  of  e(iuit\- 
has  been  obtained  by  fraud,  an  injunction  will  be  granted.'' 

Tax  officers  are  frequently  restrained  from  levying  and  col- 
lecting taxes;  and  the  jurisdiction  of  chancery  on  this  point  is 
now  undoubted.'^  There  are,  however,  limits  to  this  jurisdiction. 
It  has  been  held  by  the  Federal  courts  that  an  injunction  bill 


1  Diggs  V.  Wolcott,  1  Cranch,  179; 
Hutchinson  r.  Green,  6  Fed.  Rep. 
833;  Carson  v.  Dunham,  149  Mass.  52. 
The  Federal  courts  are  forbidden  to 
stay  proceedings  in  any  state  court, 
Act  of  1793,  ch.  22,  §  5;  1  stat.  at 
Large,  334;  Hemsley  v.  Myers,  45 
Fed.  Rep.  283. 

-  See  Wonderly  v.  Lafayette  Co., 
150  Mo.  635,  where  a  state  court  en- 
joined the  plaintiff  in  a  judgment  of 
a  Federal  court  from  proceeding. 
See,  also,  Kempson  v.  Kempson,  58 
N.  J.  Eq.  94.  See  Hampton  r.  Mayes, 
4  Ind.  Ter.  503.  "An  injunction  to 
stay  proceedings  on  a  judgment  or 
final  order  of  a  court  shall  not  l)e 
granted  in  an  action  brought  by 
the  party  seeking  the  injunction  in 
any  other  co\irt  than  that  in  which 
the  judgment  or  order  was  rendered 
or  made."    §  2510,  Ind.  Ter.  St.  1899. 

^  Grand  Rapids  Furniture  Co.  r. 
Haney  Furniture  Co.,  92  Mich.  5.')S. 
See  Pond  v.  Harwood,  139  N.  Y.  Ill ; 
North  B.  &  M.  Ins.  Co.  v.  Lathrop, 
25  U.  S.  App.  443. 

<  Prudential  Ins.  Co.  v.  Thomas, 
L.  R.  3  Ch.  74. 

5  Stevens  v.  C.  N.  Bank,  144  N.  Y. 
50. 


"  Pollock  V.  Farmers'  Loan  &  Trust 
Co.,  157  U.  S.  429;  Gregg  r.  Sanfonl, 
28  U.  S.  App.  323;  Burnet  v.  Cincin- 
nati, 3  Ham.  72;  Fremont  v.  Boling, 
11  Cal.  380;  Baltimore  r.  Porter,  18 
Md.  284;  Comm.  v.  Supervisors,  29 
Pa.  121 ;  Miller  r.  Gorman,  38  Id.  309; 
St.  Mary's  Gas  Co.  v.  Elk  Co.,  168  Id. 
405  (to  be  distinguished  from  Moore 
r.  Taylor,  147  Id.  481);  Spencer  r. 
School  District,  15  Kan.  259;  Web- 
ster V.  Harwinton,  32  Conn.  13;  John- 
son V.  Duer,  115  ^lo.  366;  Winifrede 
Coal  Co.  V.  Board  of  Education,  47 
W.  Va.  132;  Wiggins  r.  .Vtchison, 
Topeka  and  Santa  Fe  R.  R.  Co.,  9 
Okla.  118;  Birdseye  v.  The  Village  of 
Clyde,  61  Ohio,  27;  Chicago,  Burling- 
ton and  Quincy  R.  R.  Co.  v.  City  of 
Nebraska,  53  Neb.  454;  Lewis  v. 
Boguechitto,  76  Miss.  356;  Chicago 
Ry.  Co.  V.  Vollman,  213  111.  609; 
Acme  Brewing  Co.  v.  Fletcher,  10! » 
Ga.  463;  .\lexander  r.  Hender.'^on, 
105  Tenn.  431;  Harmon  v.  City  of 
Omaha,  53  Neb.  164;  Hilliard  on 
Injunc.  503  et  seq.  (.3d  ed.);  Camp- 
bell V.  Bryant,  104  Va.  509;  Hanberg 
r.  Storage  Co.,  231  111.  32;  Hemple  v. 
Hastings,  79  Neb.  723. 


CH.  IT.] 


INJUNCTIONS. 


605 


to  restrain  tiic  collection  of  a  tax  cannot  l)e  maintained  on  the 
sole  ground  of  the  illegality  of  the  tax,  but  must  jjresent  a  case 
which  falls  within  some  recognized  head  of  eciuity ;  ^  and  it  is  also 
an  established  rule  in  the  same  courts  that  no  one  can  be  per- 
mitted to  go  into  a  court  of  equity  to  enjoin  the  collection  of  a 
tax  until  he  has  shown  himself  entitled  to  the  aid  of  the  court 
by  paying  so  much  of  the  tax  assessed  against  him  as  it  can  be 
plainly  seen  he  ought  to  pay.^ 


1  Hannewinkle  v.  Georgetown,  15 
Wall.  543;  Dows  v.  Chicago,  11  Id. 
108;  State  Railroad  Tax  Case.s,  92 
U.  S.  575;  Milwaukee  v.  Koeffler,  116 
Id.  219;  Shelton  v.  Piatt,  139  Id. 
594;  Allen  v.  Pullman's  Palace  Car 
Co.,  Id.  658;  Ogden  City  r.  Arm- 
strong, 168  U.  S.  2.36;  Pittsburg,  etc., 
Ry.  V.  Board  of  Pub.  Works,  172  Id. 
37.  See,  also,  Robinson  v.  Wilming- 
ton, 25  U.  S.  App.  144;  Taylor  v. 
Louisville  &  N.  R.  Co.,  31  C.  C.  A. 
544;  Kansas  City,  F.  S  &  M.  R.  R. 
Co.  V.  King,  57  C.  C.  A.  278;  Mooers 
r.  Smedley,  6  Johns.  Ch.  27;  Le  Roy 
r.  Corp.  of  N.  Y.,  4  Id.  354;  Mercan- 
tile Nat.  Bank  v.  Mayor  of  New  York, 
172  N.  Y.  35;  Hallett  v.  Arapahoe 
Co.,  40  Colo.  308;  Dumars  v.  City,  16 
Colo.  App.  379;  Dodd  v.  Hartford, 
25  Conn.  239;  Greene  r.  Mumford, 
5  R.  I.  478;  Messeck  v.  Supervisors, 
50  Barb.  190;  Ludlow  &  Cincinnati 
Coal  Co.  V.  City  of  Ludlow,  102  Ky. 
354;  Blue  Jacket  Copper  Co.  v. 
Scherr,  50  W.  Va.  533;  Laird,  etc., 
Co.  V.  County  of  Pine,  72  Minn.  409; 
Clinton  School  District's  App.,  56 
Pu.  315;  Hewitt's  App.,  88  Id.  55; 
Fleming  ?'.  Mershon,  36  la.  413; 
Swinney  r.  Beard,  71  111.  27;  lycitch. 
r.  Wentworth,  Id.  146;  McConkey  v. 
Smith,  73  Id.  313.  See  Melvin  v. 
Lisealy,  72  Id.  63;  Nunda  r.  Crystal 
Lake,  79  111.  311  ;  Second  Nat.  Rk.  of 
Titusville  r.  Caldwell,  V.'>  I'\'<1.  i{cp. 
429,  and  cases  cited  in  note,  p.  441; 
Equitable  Trust  Co.  v.  Donahue,  8 
Del.  Ch.  422,  Ensley  v.  Mc Williams, 


145  Ala.  159;  State  v.  Wood,  155 
Mo.  425;  Schaffner  v.  Young,  10 
N.  D.  245;  McConnell  v.  Hampton 
164  Ind.  547;  Stephens  v.  Texas 
Ry.  Co.,  100  Tex.  177;  Crocker  v. 
Scott,  149   Cal.  575. 

2  National  Bank  v.  Kimball,  103 
U.  S.  732;  State  Railroad  Tax  Cases, 
92  Id.  575-617;  Northern  Pacific 
Railroad  Co.  v.  Clark,  153  Id.  252- 
272;  Dayton  v.  Multnomah  County, 
34  Oreg.  241;  De  Loughrey  v.  Hinds, 
23  Mont.  260;  Collins  v.  Green,  10 
Okla.  244;  AUiance  Trust  Co.  v. 
Multnomah  Co.,  38  Oreg.  433;  Blue 
Jacket  Copper  Co.  v.  Scherr,  50 
W.  Va.  533;  Grand  Rapids  Ry.  Co.  v. 
Grand  Rapids,  137  Mich.  587;  Doug- 
las r.  Fargo,  13  N.  D.  467;  City  of 
Jeffersonville  r.  Bridge  Co.,  169  Ind. 
645.  Where  a  corporation  has  paid 
the  full  amount  of  its  tax  as  based 
upon  the  same  rate  as  that  levied 
upon  other  property  of  the  same 
class,  equity  will  restrain  the  col- 
lection of  the  excess  illegally  as- 
.sessed,  there  being  no  adequate  rem- 
edy at  law,  when  it  appears  that  it 
would  require  a  multiplicity  of  suits 
against  the  various  taxing  authori- 
ties to  recover  the  tax  and  that  a 
portion  of  it  would  go  to  the  state 
against  which  no  action  would  lie, 
and  where  the  amount  is  so  great 
that  its  payment  would  cause  in- 
solvency, and  a  levy  upon  the  proj)- 
erty — as  in  this  case  a  street  car 
system — would  embarrass  and  in- 
jure the  public.    Raymond  v.  Chicago 


606  INJUNCTIONS.  [part  III. 

In  a  proper  case,  however,  relief  will  be  granted ;  and  this  will 
be  so  not  only  where  the  property  of  the  complainant  himself 
is  the  subject  of  the  tax,^  but  also  in  those  cases  in  which  his 
sole  interest  is  that  of  a  tax-payer  seeking  to  have  the  constitu- 
tionality of  the  tax  settled.'  Indeed,  in  some  of  the  cases  just 
referred  to,  a  more  liberal  interpretation  seems  to  be  put  upon 
the  jurisdiction  of  chancery  than  in  the  decisions  of  the  Supreme 
Court  of  the  United  States.^ 

In  a  recent  case  in  Illinois  the  rule  was  thus  stated:  "The 
jurisdiction  can  only  be  exercised  and  the  relief  granted  by  way 
of  injunction  when  it  is  necessary  to  prevent  a  multiplicity  of 
suits,  remove  a  cloud  from  title,  relieve  against  fraud,  accident 
or  mistake,  avoid  irreparable  mischief,  or  afford  some  remedy 
for  which  the  law  is  inadecjuate.  The  mere  illegality  of  a  tax 
or  a  threat  to  sell  property  to  pay  it,  ordinarily  affords  no  ground 
for  interference,  but  the  party  must  seek  a  remedy  at  law.  If 
officers  proceed  to  impose  a  tax  which  the  law  has  not  authorized, 
or  lay  it  for  fraudulent  or  unauthorized  purposes,  then  a  court 
of  equity  will  interpose  to  afford  protective  rehef  by  restraining 
the  exercise  of  powers  perverted  to  fraudulent  and  oppressive 
purposes."  "^ 

A  court  of  equity  will  also,  at  the  suit  of  a  tax-payer,  restrain 
the  illegal  disposition  of  municipal  or  county  moneys,  or  the 
('r(>ation  of  an  illegal  debt  which  the  tax-payer,  in  common  with 
others,  might  be  obliged  to  pay.^ 

Union  Traction  Company,  207  U.  S.  obtain  an   injunction.     See  Weil  v. 

20.  Ricord,  24  N.J.  Eq.  169;  Mclntyre  v. 

1  The  bill  can  only  be  filed  by  one  Storey,  80  111.  127.  See,  however, 
who  is  a  taxpayer.  Board  of  Edii-  Watertown  .v.  Mayo,  109  Mass. 
cation  v.  Guy,  County  Auditor,  et  al.,  315. 

()4  Ohio,  434.  *  Williams  v.  Button,  184  111.  608. 

2  Page  V.  Allen,  58  Pa.  345;  St.  See,  also,  O.  &  C.  R.  R.  Co.  v.  Jack- 
Clair  School  Board's  Appeal,  74  Id.  son  Co.,  38  Oreg.  589;  Correll  v. 
252;    Pittsburg's   App.,    70   Id.    142.  Smith,  221  111.  149. 

See,   also,    Wheeler   r.   Philadelphia.  5  Crampton  i'.  Zabriskie,  101  U.  S. 

77  Id.  338;   Gould  v.  Mayor  of  At-  601;    New   London   v.    Brainerd,    2'Z 

lanta,  55  Ga.  677;  Lewis  r.  Spencer,  Conn.    552;    The    Liberty    Bell,    23 

7  W.  Va.  689;  Schumm  v.  Seymour,  Fed.  Rep.  843;  McCord  v.  Pike,  121 

24  N.  J.  Eq.  143,  and  Union  Pac.  R.  111.  288;  Solomon  v.  Fleming,  34  Neb. 

Co.  r.  Cheyenne,  113  U.  S.  525.  40;  Ackerman  v.  Thummel,  40  Neb. 

3  On  similar  principles  a  man  who.se  95;  Mueller  r.  Eau  Claire  Co.,  108 
jjusine.ss  is  threatened  to  be  inter-  Wis.  304;  Tukey  v.  City  of  Omaha, 
fered  with  by  a  board  of  health  on  54  Neb.  370;  Clarksdale  v.  Broaddus, 
the  ground  that  it  is  a  nuisance,  may  77  Miss.  667;  Dodge   v.   Van  Buren 


CH.  II.] 


INJUNCTIONS. 


607 


Jurisdiction  exists,  moreover,  to  restrain  the  exaction  by 
transportation  companies  of  rates  of  carriage  which  are  unjust 
and  unreasonable ;  and  while  there  is  no  authority  in  the  courts 
to  lay  down  rules  as  to  what  rates  are  reasonable  and  fair,  they 
are  entitled  to  prevent  the  imposition  of  such  charges  as  would 
work  a  practical  destruction  to  rights  of  property.^ 

A  court  of  equity  will  not  interfere  to  restrain  the  exercise  of 
executive  discretion.- 


Circuit  Judge,  118  Mich.  189;  Reyn- 
olds V.  Waterville,  92  Me.  292;  Cham- 
berlain V.  City  of  Tampa,  40  Fla. 
74;  Kyes  v.  St.  Croix  Co.,  108  Wis. 
136;  George  v.  Cleveland,  53  Neb. 
716;  Meyer  v.  Town  of  Boonville, 
'62  Ind.  165;  Holden  v.  City  of  Al- 
ien, 179  111.  318;  Burke  v.  Snively, 
208  111.  328;  Lindblad  v.  Board  of 
Education,  221  Id.  261;  Balch  v. 
Beach,  119  Wis.  77;  Dixon  v.  Greene 
Co.,  79  Miss.  794;  Bates  v.  Mayor,  1 
Alaska,  208;  Castle  v.  Secretary,  16 
Haw.  769;  Blood  v.  Beal,  100  Me. 
30;  Bates  v.  City  of  Hastings,  145 
Mich.  574;  Kellogg  v.  School  Dis- 
trict, 13  Okla.  285;  Johnson  v.  Black, 
103  Va.  477. 

1  See  the  remarks  of  Brewer,  J.,  in 
Reagan  v.  Farmers'  Loan  and  Trust 
Co.,  154  U.  S.  397.  Where  a  state 
'ailroad  commission,  which  is  granted 
power  by  the  state  constitution  to 
make  and  enforce  rates,  enacts  and 
attempts  to  enforce  rates  which  are 
so  low  as  to  be  confiscatory,  the 
proper  remedy  is  by  bill  in  equity  to 
enjoin  such  enforcement,  and  such 
a  suit  against  the  members  of  the 
commission  will  not  be  bad  as  one 
against  the  state,  but  it  should  not 
be  commenced  until  the  rate  has 
been  fixed  by  the  body  having  the 
last  word.  Prentis  i\  Atlantic  Coast 
Line,  211  U.  S.  210.  An  injunction 
will  be  issued  to  suspend  the  en- 
forcement of  a  rate  fixetl  by  the 
legislature  of  a  state  at  which  gas 
is  to  be  supplied  if  such  rate  is  con- 


fiscatory, but  a  court  of  equity  hes- 
itates to  interfere  by  injunction  to 
suspend  the  rate  before  it  goes  into 
operation  and  a  fair  trial  is  made. 
Willcox  V.  Consolidated  Gas  Co.,  212 
U.  S.  19. 

2  State  of  Mississippi  v.  Johnson,  4 
Wall.  475;  Kirwan  v.  Murphy,  189 
U.  S.  54;  Cope  v.  Hastings,  183  Pa. 
300;  Warner  v.  Hastings,  Id.  324. 
See,  also,  remarks  of  Agnew,  J.,  in 
Patterson  v.  Barlow,  60  Pa.  74,  and 
State  V.  Superior  Court  of  Milwaukee 
Co.,  105  Wis.  651;  Southern  Mining 
Co.  V.  Lowe,  105  Ga.  352;  Canal 
Comrs.  V.  Village  of  East  Peoria,  179 
111.  214;  Baughman  v.  Heinselman, 
180  111.  251;  Frost  v.  Thomas,  26 
Colo.  222;  Harrisonburg  v.  Roller,  97 
Va.  582;  Trustees  v.  School  Direc- 
tors, 190  111.  390;  Zevely  v.  Weimer, 
5  Ind.  Ter.  646.  A  court  of  equity 
has  no  power  or  jurisdiction  to  re- 
strain or  enjoin  the  constitutional 
convention,  its  officers  or  delegates, 
from  exercising  any  of  the  rights, 
powers,  and  obUgations  confided  to 
it  by  Congress  or  the  people;  nor  can 
the  powers  of  the  court  be  invoked 
to  restrain  or  enjoin  the  submission 
of  the  constitution  or  any  proposi- 
tion contained  therein  to  a  vote  of 
the  people  in  advance  of  its  adop- 
tion and  ratification  by  the  people 
and  its  approval  by  the  President 
of  the  United  States,  on  the  ground 
that  the  proposed  constitution  or 
any  of  its  provisions  is  unconstitu- 
tional, or  that  the  convention  acted 


GU8 


INJUNCTIONS. 


[part  III. 


425.  lujuuciious  in  cases  of  trusts  and  mortgages. 

It  was  stated  above  that  equitable  rights  are  liable  to  be  in- 
fringed in  two  ways:  first  (indirectly),  by  being  disregarded  in 
the  proceedings  at  law,  and,  second  (directly),  by  some  act  in- 
jurious to  the  equity.  Having  noticed  the  first  general  class  of 
cases,  it  will  be  desirable,  now,  to  pass  to  a  brief  consideration 
of  the  second. 

It  may  perhaps  be  stated  as  a  general  rule,  that  as  a  Court  of 
Chancery  will  interfere  to  redress  an  injury  to  an  equitable  right, 
it  will  also  interpose  its  preventive  remedy  by  injunction  when- 
ever such  rights  are  threatened.  Thus,  equity  will  interfere  to 
prevent  a  breach  of  trust ;  it  will  restrain  an  improper  or  impru- 
dent disposition  of  tmst  assets  on  the  apphcation  of  the  cestui 
que  trust, ^  or  a  co-trustee  may  invoke  the  aid  of  the  court  to  pre- 
vent a  threatened  breach  of  trust.-  Injunction  may,  upon  the 
same  principles,  be  issued  against  executors  when  the  assets  of  an 
estate  are  endangered  by  their  mismanagement.^ 

Equity  will  also  interfere  to  protect  the  rights  of  the  holder 
of  an  equitable  title.  Thus  a  creditor  of  a  husband  may  be  re- 
strained from  levying  upon  the  separate  equitable  estate  of  a 
married  woman ;  "*  and  in  Pennsylvania  it  has  been  held  that  the 
feme  is  entitled  to  the  same  protection  in  regard  to  her  separate 
property  under  the  Married  ^^'oman's  Act,^  and  indeed,  in  all 
cases  where  the  process  of  law  is  being  used  against  right  and 
justice.*^  This,  however,  is  the  ride  only  when  the  creditor  is 
clearly  and  undenial)ly  proceeding  against  right  and  justice,  to 
use  the  process  of  the  law  to  the  injury  of  the  wife,  and  it  will  not 
Ije  ai)}jlied  to  cases  in  which  there  is  doubt  and  conflict.'' 

A  bill  in  equity  may  be  maintained  by  a  wife  against  her 
husband  to  recover  her  separate  property  obtained  from  her  by 
his  fraud  and  coercion.* 


in  excess  of  its  lawful  powers.    Frantz 
V.  .Vutry,  18  Okla    502. 

1  Elinendorf  r.  Lansing,  4  Johns. 
Ch.  oGo;  Owens  v.  Childs,  58  Ala. 
li:;;  Cushman  v.  Church,  162  Pa. 
280. 

2  Scott  V.  Becher,  4  Price,  346; 
In  re  Chertsey  Market,  6  Id.  279; 
Kerr  on  Injunctions,  172,  17-5. 

■'  Kerr  on    Injunctions,   Chap.   IX. 

4  Smith  r.  Smith,  4  Jon.  Eq.  .303; 

Thomas  i".  James,  32  Ala.  723;  Ein- 


stein V.  The  Bank  of  California,  137 
Cal.  47. 

5  Hunter's  Appeal,  10  Pa.  194; 
Lyon's  .\ppeal,  61  Id.  15;  Thomp- 
son's Appeal.  107  Id.  559;  Hill  r. 
Bowman,  35  Mich.  191;  Patterson  i'. 
Fish,  Id.  209. 

6  Natalie  Anth.  Coal  Co.  v.  Ryon, 
188  Pa.  138. 

7  See  Winch's  Appeal,  61  Pa.  424, 
Davis  r.  Michener,  106  Id.  395. 

8  Frankel    v.    Frankel,    173    Mass. 


CH.  11.] 


INJUNCTIONS. 


609 


A  mortgagee  may,  ortliuarily,  pursue  all  his  remedies  at  once. 
It  sometimes,  however,  happens  that  it  would  be  inequitable  to 
allow  him  to  do  so,  and  hence  he  will  be  I'estrained  by  injunc- 
tion under  certain  circumstances  from  proceeding  by  ejectment 
against  the  premises,  or  personally  against  the  mortgagor,  as 
the  exigencies  of  the  case  may  require.^ 

426.  Ill  junctions  between  partners. 

Another  class  of  cases  in  which  equity  will  interfere  by  in- 
junction embraces  disputes  between  partners.  It  may  be  stated, 
as  a  general  rule,  that  a  Court  of  Chancery  has  jurisdiction  to 
restrain  by  injunction  members  of  a  firm  from  doing  acts  incon- 
sistent with  the  terms  of  the  partnership  agreement  or  with  the 
duties  of  a  partner.-  Injunctions  may  be  obtained  without  a 
dissolution;  ^  or  for  the  purpose  of  carrying  out  a  dissolution;  '* 
or  after  dissolution  for  the  purpose  of  }7rotecting  the  rights  of  the 
respective  parties."'  Thus  during  the  continuance  of  a  partner- 
ship a  man  may  be  restrained  from  a  breach  of  the  partnership 
articles,  or  from  excluding  his  co-partner  from  the  partnership 
business,  or  from  entering  into  partnership  with  strangers.  And 
perhaps  the  better  opinion  is  that  the  court  would  interfere  by 
injunction  where  a  dissolution  is  not  prayed,  even  in  the  case  of 
partnerships  determinable  at  will,  although  the  point  is  some- 
what doubtful.^ 

If  a  bill  is  filed  for  a  dissolution  of  the  partnership,  an  injunc- 


214;  Heckman  v.  Heckman,  215  Pa. 
203. 

1  Cockell  V.  Bacon,  16  Beav.  158; 
Booth  V.  Booth,  2  Atk.  343;  Drum- 
mond  V.  Pigou,  2  Myl.  &  K.  168;  Ken- 
on  Injunctions,  191.  Equity  will  re- 
strain a  threatened  levy  on  real  es- 
tate which  is  not  liable  to  execution 
and  thus  prevent  a  cloud  on  the 
title.  Stevens  v.  Mulligan,  167  Mass. 
84;  Zimmerman  v.  Makepeace,  152 
Ind.  1!)!);  Hughes  v.  Linn  (,'ounty, 
37  Orcg.  111.  See,  atso,  .\.llen  v. 
Perrine,  103  Ky  516,  Johnson  r. 
Huber,  106  Wis.  282. 

■■!  See  Stuckdale  r.  Ullery,  37  Pa. 
486.  \\'here  one  of  two  partners 
agrees  to  sell  his  interest  in  the 
partnership    to    the    other    and    the 

39 


other  agrees  to  use  the  partnership 
name  upon  the  express  condition 
that  he  will  not  Contract  any  new 
liability  thereunder  and  thereafter 
buj's  large  bills  of  goods  in  the  name 
of  the  old  firm  and  is  insolvent,  the 
selling  partner  is  entitled  to  an  in- 
junction. Joselove  v.  Bohrman,  119 
Ga.  204. 

3  Leavitt  /;.  Windsor  Land  &  In- 
vestment Co.,  12  U.  S.  App.  193. 

i  J.  V.  S.  [1894],  3  Ch.  72. 

^  Brass  &  Iron  Works  Co.  v.  Payne, 
50  Ohio  St.  115. 

•*  See  upon  the  general  subject  Kerr 
on  Injunctions,  164,  165;  Lindley  on 
Partnership,  1053;  post,  chapter  on 
Partnership  Bills. 


610  INJUNCTIONS.  [part   III. 

tion  may  issue  to  restrain  any  act  which  may  impede  the  winding 
up  of  the  concern. 

After  dissolution,  an  agreement  by  a  retiring  partner  not  to 
carry  on  the  business  will  be  enforced  by  means  of  an  injunction 
restraining  the  retiring  partner  according  to  the  terms  of  his 
covenant.  Other  stipulations  may  also  be  enforced  by  injunc- 
tion.^ 

427.  Restraint  of  disclosure  of  confidential  communica- 
tions. 

Under  the  general  jurisdiction  of  courts  of  equity  to  correct 
abuses  of  confidence,  injunctions  will  be  issued  to  restrain  the 
disclosure  of  confidential  comnumications,  papers,  and  secrets;^ 
unless  the  interests  of  public  justice  require  otherwise.  That 
this  jurisdiction  is  exercised  upon  the  ground  of  a  breach  of 
confidence  is  shown  by  the  case  of  trade  secrets.  Ordinarily  a 
court  will  not  restrain  a  person  from  divulging  a  trade  secret; 
but  if  a  person  has  gained  possession  of  the  secret  by  means  of 
a  confidential  relation,  he  will  be  prevented  by  injunction  from 
making  use  of  or  divulging  the  secret,  because  to  do  so  would 
be  a  breach  of  faith. ^    Upon  the  same  principle  rests  the  de- 

1  Kerr  on  Injunctions,  166,  167.  Co.,  154  Ind.  673.     If,  however,  he 

2  New  Jersey  State  Dental  Society  has  not  acquired  the  knowledge  by 
V.  The  Dentacura  Company,  57  N.  J.  means  of  a  confidential  relation  he 
Eq.  593;  Barrett  v.  Fish,  72  Vt.  18;  cannot  be  restrained.  Stewart  v. 
Elaterite  Paint  Co.  v.  Frost,  105  Hook,  118  Ga.  445.  One  who  is  un- 
Minn.  239.  Upon  this  principle  a  der  an  express  contract,  or  a  contract 
photographer  was  enjoined  from  sell-  implied  from  a  confidential  relation 
ing  copies  which  had  been  taken  not  to  disclose  a  trade  secret,  will 
from  the  negative  without  the  cus-  be  enjoined  from  disclosing  the  same, 
turner's  consent,  for  in  so  doing  the  and  others  who  induce  him  to  dis- 
photographer  was  said  to  be  "  abusing  close  the  secret,  knowing  of  his  con- 
the  power  confidentially  placed  in  his  tract  not  to  disclose  it,  or  knowing 
hands  merely  for  the  purpose  of  sup-  that  his  disclosure  is  in  violation  of 
plying  the  customer."  Pollard  v.  the  confidence  reposed  in  him,  will 
Photographic  Co.,  40  Ch.  D.  349.  be  enjoined  from  making  any  use  of 

i  Newberry  v.  James,  2  Mer.  451 ;  the     information    so    obtained,     al- 

Williams  v.  Williams,  3  Id.  157;  Yo-  though    they    might    have    reached 

vatt  V.   Winyard,    1   J.   &  W.   394;  the  same  result  intelUgently  by  their 

Morison  v.   Moat,   9  Hare,   241;   21  own  experiments  or  efforts.     Stone 

L.  J.  Ch.  248;  Peabody  v.  Norfolk,  98  v.  Grasselh  Chemical  Co.,  65  N.  J. 

Mass.  452;  Kerr  on  Injunctions,  181;  Eq.  756.     Where  a  car  manufactur- 

Tabor  v.   Hoffman,    118   N.   Y.   30;  ing    company    delivers    to    its    cus- 

Sanitas  Food  Co.  v.  Cemer,  134  Mich.  tomers    blue    prints    in    connection 

370;    Westervelt   v.   National   Paper  with  the  orders  for  cars  for  the  in- 


CH.  II.] 


INJUNCTIONS. 


611 


cision  in  the  case  of  Merryweather  v.  Moore. ^  In  that  case  it 
appeared  that  the  defendant  was  a  clerk  in  the  employ  of  the 
plaintiffs,  who  were  fire-engine  makers,  but  had  left  their  service 
for  that  of  another  firm.  Two  days  before  leaving  the  plaintiff's 
service,  the  defendant  compiled,  for  his  own  use  and  without 
the  plaintiffs'  knowledge,  a  table  of  dimensions  of  the  various 
engines  made  by  them;  and  this  table  he  took  with  him  to  his 
new  employers.  It  was  held  that  the  defendant's  conduct  was 
an  abuse  of  confidence,  and  that  the  plaintiffs  were  entitled  to  an 
injunction  to  restrain  him  from  publishing  or  communicating  the 
contents  of  the  table  to  any  one.^ 

On  the  other  hand  in  Stein  v.  National  Life  Association,  it 
was  held  that  equity  will  not  enjoin  a  former  insurance  agent 
from  using  any  legitimate  means  to  influence  policy  holders  of 
the  company  to  place  their  insurance  in  another  company,  where 
there  is  no  contractual  restraint  from  "doing  so,  and  when,  by 
such  conduct,  he  violates  no  business  secret  or  trust  which  had 
been  reposed  in  him  because  of  his  relation  as  agent. ^ 


formation  and  use  of  the  purchasers 
as  a  necessary  part  of  the  transaction 
and  also  for  their  use  in  ordering 
repair  parts,  and  the  customers  de- 
liver the  blue  prints  to  a  rival  car 
manufacturing  company  so  that 
the  latter  might  use  them  in  manu- 
facturing and  selling  cars  and  car 
parts,  the  latter  company  will  be 
compelled  by  a  court  of  equity  to 


surrender  up  such  blue  prints  to  the 
former  company.  Pressed  Steel  Car 
Co.  V.  Standard  Car  Co.,  210  Pa.  464. 

1  [1892]  2  Ch.  518. 

2  Merryweather  v.  Moore  [1892],  2 
Ch.  518;  Fralich  v.  Despar,  165  Pa. 
24. 

3  Stein  V.  National  Life  Associa- 
tion, 105  Ga.  821. 


612 


INJUNCTIONS. 


[part  III. 


SECTION  II. 


INJUNCTIONS   TO   PROTECT   LEGAL   RIGHTS. 


452. 
453. 

454. 


428.  Classification  of  cases  in  which 

Injunctions  issue   to   protect 
legal  rights. 

429.  Waste. 

430.  Common-law     remedies;     their 

defects. 

431.  Reasons  for  remedy  in  equity. 

432.  Nature  of  Waste. 

433.  Parties  who  will  be  restrained 

from   committing  waste. 

434.  Equitable  Waste. 

435.  Destructive  Trespass;  origin  of 

jurisdiction  in  such  cases. 

436.  Subdivisions  of  the  subject. 

437.  Public     Companies;     restrained 

from  improperly  taking  land. 

438.  Nuisance. 

439.  Remedies  at  common  law ;  their 

defects. 

440.  How  far  complainant's  title  at 

law  must  be  established. 

441.  Different  kinds  of  nuisance. 

442.  Coming  to  a  nuisance. 
■143.  Lateral    support    to    soil;    Pur- 

prestures;  Public  Companies. 

444.  Injunction    in   cases   of   Patent 

Right ;     Copyright ;     Literary 
Property  and  Trade-mark. 

445.  Inspection.  ' 

428.  Classiflcatioii  of  cases  in  wliich  injunctions  issue  to 
protect  le^al  riglits. 

Havin<i;  considered  those  case.s  in  which  a  court  of  equity  inter- 
feres by  injunction  for  the  purpose  of  protecting  equitable  rights, 
it  will  be  convenient  now  to  pass  to  the  second  general  division 
of  the  subject,  viz.,  that  which  embraces  the  instances  in  which 
a  court  of  equity  interposes  in  order  to  protect  legal  rights. 

This  jurisdiction,  although  most  extensive,  yet  has  its  hmits. 
It  is  exercised  subject  to  the  general  maxim  that  equity  will  not 
interfere  where  th(M-e  is  a  full,  adequate,  and  complete  remedy 
at  law;  and,  moreover,  while  private  legal  rights  are  protected 
by  the  restraining  power  of  chancery,  yet  that  power  will  not  be 


446.  Injunction. 

447.  Account. 

448.  Patent  Right. 

449.  Previous  trial  at  law  to  estab- 

lish right  unnecessary. 

450.  Copyright. 

451.  Copyright;  in  the  United  States. 
Piracy,  what  it  is. 
Other  requisites  to  an  Injunc- 
tion. 

Literary  Property;  Prince  Al- 
bert V.  Strange. 

455.  Questions  as  to  publication. 

456.  Trade-marks. 

457.  What  are  trade-marks. 

458.  Diligence;  colorable  imitations. 

459.  Alienation  of  negotiable  securi- 

ties. 

Preservation  of  property  pend- 
ing litigation. 

Breach  of  negative  covenants. 

462.  Lumley  v.  Wagner. 

463.  Instances   of    covenants    which 

have  been  restrained. 

Negative  quality  imported  into 
affirmative  covenants. 

Injunctions  in  cases  of  Corpo- 
rations. 


460. 


461. 


464. 


465. 


CH.  II.] 


INJUNCTIONS. 


613 


interposed  where  the  action  to  be  enjoined  is  'political  and  govern- 
mental, nor  for  the  purpose  of  hampering  executive  discretion/ 
or  trying  the  title  to  public  offices.^ 

But  the  jurisdiction  is,  nevertheless,  very  broad  and  embracers 
very  many  subjects.  It  would  be  impossible,  in  a  general  treatise 
like  the  present,  to  notice  minutely  all  of  these  instances.'''  Most 
of  them,  however,  will  be  found  under  some  one  of  the  following 
heads — viz.:  Waste,  Trespass,  Nuisance,  Copyright,  Literary 
Property,  Patent  Right,  Trade-marks,  Alienation  of  Property, 
Protection  of  Property  pending  Litigation,  Negative  Covenants, 
and  Corporations. 

429.  Waste. 

And,  first,  of  Waste.  It  is  settled  law  that  a  court  of  equity 
will,  under  proper  circumstances,  interfere  by  injunction  foi- 
the  purpose  of  restraining  waste;  and  it  will,  therefore,  in  dis- 
cussing the  subject,  be  convenient  to  consider  what  waste  is, 
what  are  its  different  kinds,  what  acts  will  constitute  it,  and  for 
and  against  what  parties  equity  will  interfere. 

Waste  is  defined  to  be  a  substantial  injury  to  the  inheritance 
done  by  one  having  a  limited  estate,  either  of  freehold  or  for 
years,  during  the  continuance  of  his  estate.  The  essential  char- 
acteristics of  waste  are  that  the  party  committing  it  is  in  rightfiU 
possession,^  and  that  there  is  privity  of  title  between  the  parties.-"* 
Thus,  for  example,  if  a  tenant  by  the  curtesy  of  England  were 
to  cut  down  the  timber  on  the  estate,  suffer  the  mansion-house 
to  go  to  decay,  and  tear  down  out-buiklings,  such  conduct  would 


1  Ante,  p.  607,  note  2. 

2  Green  v.  Wills,  25  U.  S.  App.  3S;', 
Belknap  v.  Schild,  161  U.  S.  10;  Heff- 
ran  v.  Hutchins,  160  111.  550;  State  v. 
Lord,  28  Oreg.  498;  Goldsworthy  r. 
Boyle,  175  Pa.  254;  Brower  v.  Kant- 
ner,  190  Pa.  185;  Southern  Mining 
Co.  V.  Lowe,  105  Ga.  352;  Frost  /•. 
Thomas,  26  Colo.  222;  Canal  Comrs. 
V.  Village  of  East  Peoria,  179  111.  214 ; 
Baughman  r.  Heinselman,  180  Id. 
251 ;  Trustees  r.  School  Directors,  190 
Id.  390;  Harrisonburg  v.  Roller,  97 
Va.  582;  Ins.  Co.  r.  Craig,  106  Tenn. 
621 ;  Hurley  v.  Levee  Commissioners, 
76  Mi.ss.  141;  Marshall  v.  State  Re- 
formatory,   201     111.    9;     People     r. 


Barrett,  203  Id.  99.  See,  however, 
as  to  trying  title  to  public  office, 
Parson.s  v.  Durand,  150  Ind.  203. 

s  Guillotte  V.  Poincy,  41  La.  Ann. 
333;  Patten  Paper  Co.  v.  Kankauna 
Co.,  70  Wis.  659. 

■»  For  injunctions  to  restrain  in- 
juries to  property  when  the  party  is 
in  hostile  possession,  see  pout,  §  460. 

5  A  mortgagor  who  has  parted  with 
his  equity  of  redemption  cannot  have 
an  injunction  to  restrain  waste  by 
his  vendee  on  account  of  his  (the 
mortgagor's)  liability  on  his  bond. 
He  has  no  interest  in  the  land,  and 
can  therefore  have  no  action  con- 
cerning it. 


til  4 


INJUNCTIONS. 


[part  III. 


be  waste  on  his  part,  for  which  he  would  be  responsible  to  the 
remainderman,  viz.,  the  heir  of  the  wife.^ 


430.  Coininoii-law  remedies  ;  their  defects. 

At  common  law  the  only  })arties  liable  for  waste  were  the 
tenants  of  legal  estates,  i.  e.,  those  estates  which  were  created 
by  act  of  law  as  distinguished  from  those  created  by  act  of  party, 
and  which  were  termed  conventional  estates.  These  parties 
who  were  thus  liable  for  waste  were  tenants  by  the  curtesy,  in 
dower,  and  guardians;  for,  as  the  estates  of  these  persons  were 
created  by  law,  it  was  thought  proper  that  the  law  ought  to  in- 
terpose on  behalf  of  the  remainderman,  and  hence  these  par- 
ticular tenants  were  made  liable  for  waste.  Where,  however, 
a  limited  estate  was  created  by  deed,  the  particular  tenant  was 
not  at  common  law  liable  for  waste,  unless  it  was  so  expressly 
sti])idated  in  the  conveyance;  because  the  law  would  not  protect 
j)arties  who  did  not  take  care  to  protect  themselves.  This  harsh 
rule  was,  however,  altered  by  the  statutes  of  Marlbridge  (52 
Hen.  III.,  c.  23)  and  of  Gloucester  (6  Edw.  I.,  c.  5),  and  the 
liability  for  waste  was  extended  to  conventional  tenants  for  life 
and  to  tenant  for  years. 

The  conunon-law  remedy  for  waste,  as  extended  by  the  stat- 
utes of  Marlbridge  and  Gloucester,  was  by  a  writ  of  waste,  in 
which  the  thing  wasted  was  forfeited,  and  damages  were  re- 
covered. The  writ  of  waste  has  been  abolished  in  England,  and 
the  only  common-law  remedy  which  the  remainderman  now  has 
is  a  special  action  on  the  case  for  damages.^ 

In  many  of  the  United  States  remedies  for  waste  are  given 
by  statute;  in  some  of  them  the  place  wasted  being  forfeited,  and 
damages  recovered;  in  others  the  remedy  being  simply  an  action 
for  damages.^ 

1  In  modern  times  the  injury  to  lessor  from  boring  outside  of  the 
the  estate  of  the  complainant  may  demised  sites  in  such  a  way  as  to 
partake  of  the  nature  of  waste,  and, 
therefore,  justify  his  resort  to  equity, 
although  he  may  not  have  the  right 
to  possession.  Thus,  under  an  oil 
lease,  the  lessee  may  have  no  right 
to  the  possession  of  the  premises 
outside  of  the  designated  sites  within 
which  he  has  a  right, to  bore  for  oil; 
but  he  may,  nevertheless,  have  a 
right  to  an  injunction  to  restrain  the 


interfere  with  the  lessee's  right  to 
take  oil.  Duffield  v.  Hue,  136  Pa. 
602-017.  Or  he  may  maintain  an 
action  at  law.  Duffield  i\  Rosenz- 
weig,  144   Pa.  520. 

2  Jefferson  v.  Bishop  of  Durham,  1 
Bos.  &  Pull.  120;  Williams  on  Real 
Prop.  24. 

3  See  Washburn  on  Real  Prop.  22, 
note. 


CH.  II.]  INJUNCTIONS.  615 

431.  Reasons  for  remedy  in  equity. 

It  is  obvious  that  both  the  conniion-kiw  and  statutory  rem- 
edies were  inefficient  in  this,  viz.,  that  they  did  not  stop  the  in- 
jury that  was  going  on,  and  that,  however  severe  the  remedy 
might  be  as  against  the  defendant,  it  nevertheless  afforded  but 
inadequate  redress  to  the  plaintiff.  Hence  equity  interposed  by 
injunction  to  restrain  the  defendant  from  continuing  to  commit 
waste,  and  this  remedy  has  been  found  so  simple  and  so  effective 
that  it  is  now  firmly  established  as  a  branch  of  chancery  juris- 
diction, and  has  to  a  great  extent  superseded  the  common-law 
action.^ 

432.  Nature  of  Waste. 

Anything  is  waste  which  changes  the  character  of  the  inherit- 
ance. Hence,  even  acts  which  increase  the  value  of  the  es- 
tate may  amount  to  waste.  Such  waste  is  called  meliorating 
waste.2 

Waste  is  either  voluntary  or  permissive.  Vohmtary  waste 
consists  in  doing  something  which  the  owner  of  the  limited  estate 
has  no  authority  to  do,  such  as  cutting  timber,  opening  mines, 
and  so  forth. ^    Permissive  waste  consists  in  the  omission  of  acts 

1  See  Hill  v.  Bowie,  1  Bland,  593.  jurisdiction.    It  is  superfluous  to  cite 

Moreover,  "  chancery  goes  to  greater  authorities  for  so  familiar  a  principle, 

lengths  than  the  courts  of  law  in  stay-  but.  I  may  refer  to  Allison's  Appeal, 

ing  waste.     It  is  a  wholesome  juris-  77  Pa.  221,  as  a   recent   case  in  this 

diction,   to  be  liberally  exercised  in  court,  where  the  invasion  restrained 

the  prevention  of  irreparable  injury,  was  of  the  complainant's  right  to  oil, 

and    depends   on    much    latitude    of  a  fluid  far  more  capable  of  accurate 

discretion  in   the   court."      Kane   v.  measurement  than  gas."  See,  further, 

Vanderburgh,  1  Johns.  Ch.  4.     The  as    to   this   jurisdiction,    Watson    v. 

ca.se  of   the   Westmoreland    Natural  Hunter,  5  Johns.  Ch.  169;  Dawson  v. 

Gas  Co.  V.  DeWitt,  130  Pa.  251,  may  Tremaine,  93  Mich.  320,  and  Manu- 

be  particularly  noted.     It  was  a  bill  facturers'  Gas   Co.   v.  Indiana    Nat. 

by  a  lessee  of  oil  and  natural  gas  Gas  Co.,  155  Ind.  461;  Hicks  v.  Am. 

again.st  the  lessor  and  a  subsequent  Nat.  Gas  Co.,  207  Pa.  579. 

le.ssee  of  the  land.     "The  bill,"  said  2  Kerr  on   Injunctions,    239.     See 

Mitchell,  J.,  "is  a  bill  to  stay  waste,  Doherty  v.  AUman,  3  App.  Cas.  709, 

and    that    the    damage    threatened,  where    the    injunction    was   refused, 

even  if  not  irreparable,  is  entirely  in-  The  waste  was  meliorating  waste, 

capable  of  measurement  at  law,  can-  3  gge  Dashwood  v.  Magniac  [1891], 

not   be   seriously    questioned.     Such  3  Ch.  306,  where  the  whole  subject 

cases   were  among   the  earliest,    and  of  waste  by  felling  timber,  in  Eng- 

have   always   been    among  the  most  land,  is  exhaustively  discussed, 
incontestable  within  the  chancellor's 


616 


INJUNCTIONS. 


[part  III. 


which  it  is  the  duty  of  the  particular  tenant  to  perform,  as  if 
he  permits  buildings  to  go  to  decay  by  neglecting  to  repair 
them.  For  permissive  waste  there  is  generally  no  remedy  in 
equity;  but  an  injunction  may  issue  under  special  circum- 
stances.* 

It  is  impossible  to  give  a  catalogue  of  the  acts  which  will 
amoimt  to  waste.  It  nmst,  however,  here  be  observed  that  many 
acts  would  be  considered  waste  in  England  which  are  not  so  re- 
garded in  this  country.  Thus,  in  many  parts  of  the  United 
States,  cutting  timber  by  a  tenant  for  life  would  be  regarded  as 
proper  for  the  purpose  of  clearing  the  land ;  ^  whereas  in  Eng- 
land a  tenant  for  life  has  no  right  to  cut  down  trees,  but  can  only 
enjoy  their  shade  or  fruit. ^ 

It  is  waste  to  open  new  mines  in  land,  although  it  is  not  waste 
to  continue  the  working  of  mines  already  opened."*  So  it  is  waste 
to  (cultivate  land  in  such  a  manner  as  to  change  its  character ; '' 
to  suffer  a  sea-wall  to  go  to  decay ;  ^  to  tear  down  buildings,  or 
permit  them  to  become  dilapidated;"  or  to  remove  fixtures.^ 
To  this  last  species  of  waste,  however,  it  must  be  remembered 
that  there  are  important  exceptions  in  the  cases  of  trade  fixtures, 
and  ornamental  fixtures.  Trade  fixtures  may  be  removed,  if 
taken  away  before  the  expiration  of  the  term ;  and  so  also  ma}' 
fixtures  for  ornament  in  some  cases,  although  the  rule  as  to 
this  last  class  of  fixtures  is  much  more  strict  than  as  to  the 
former* 


1  Kerr  on  Injunctions,  252;  Hill  on 
Trustees,  590  (4th  Am.  ed.) ;  Powys  v. 
Blagrave,  Kay,  495;  Cannon  v.  Barry, 
59  Miss.  289.  But  see  Waddell  v. 
De  Jet,  76  Miss.  104. 

2  Crawley  v.  Timberlake,  2  Ired. 
Eq.  460;  Alexander  v.  Fisher,  7  Ala. 
514;  Cardiner  v.  Dering,  1  Paige  Ch. 
573;  McCullough  v.  Irvine,  13  Pa. 
438;  Lynn's  Appeal,  31  Id.  44;  More- 
house V.  Cotheal,  2  Zab.  521;  Keeler 
V.  Eastman,  11  Vt.  293;  Drown  v. 
Smith,  52  Me.  141 ;  WiUiams  on  Real 
Prop.  23;  Hill  on  Trustees,  590  (4th 
.\m.  ed.).  But  the  tenant  for  life 
must  not  cut  down  more  timber 
than  is  necessary  for  .the  enjoyment 
of  his  estate.  Johnson  v.  Johnson, 
2  Hill  Ch.  277;   Livingston  v.  Rey- 


nolds, 26  Wend.  115;  Smith  v. 
l\jyas,  2  Dess.  65. 

:'  He  i.s,  however,  entitled  to  rea- 
sonable estovers  for  necessary  re- 
pairs, agricultural  implements,  and 
firewood. 

*  Co.  Litt.  54,  b;  Saunders's  Case, 
5  Coke,  12  a;  Cowley  v.  Wellesley, 
L.  R.  1  Eq.  656;  Clegg  v.  Rowland, 
2  Id.  160. 

5  Co.  Litt.  53,  b;  Kerr  on  Injunc- 
tions, 249. 

e  Co.  Litt.  53,  b. 

7  Co.  Litt.  53,  b.  See  Douglass  v. 
Wiggins,  1  Johns.  Ch.  435. 

8  Kerr  on  Injunctions,  252. 

'■>  Elwes  V.  Mawe,  2  Smith'?  Lead. 
Cas.  177,  and  notes. 


CH.  n.] 


I  N.H' NOTIONS. 


617 


The  existence  of  a  covenant  to  repair  does  not  preclude  a  court 
of  equity  from  restraining  waste  by  injunction.^ 

4H3.  Parties  who   will   he    restrained   from   committing 

waste. 

An  injunction  to  restrain  waste  is  granted  in  other  cases  be- 
sides those  of  j^articular  tenants  and  remaindermen.  Thus, 
while  the  court  will  not  ordinarily  interfere  to  restrain  joint- 
tenants,  tenants  in  common,  and  co-parceners,  it,  nevertheless, 
will  do  so  if  the  wrong-doei'  is  insolvent,  or  is  incapable  of  pay- 
ing the  excess  of  the  value  beyond  his  own  share,  or  if  the  waste 
amounts  to  destructive  waste  or  spoliation,  or  a  partition  suit  has 
been  instituted.^ 

So  a  mortgaged  in  possession  may  be  restrained  from  com- 
mitting waste  if  the  security  is  sufficient ;  ^  but  if  the  security  is 
insufficient,  he  is  entitled  to  make  the  most  of  the  property.^ 
A  mortgagor  in  possession  is  considered  the  owner  of  the  prop- 
erty, and  he  may  exercise  all  the  rights  of  ownership.  But  if 
the  security  is  insufficient,  an  injunction  may  go  against  a  mort- 
gagor.^ 

An  action  of  waste  would  not  lie  at  law  by  a  remainderman 
against  the  tenant  for  life,  if  there  was  a  mesne  remainderman. 
As,  for  example,  if  there  was  a  tenant  for  life,  with  remainder 
over  to  another  for  life,  remainder  over  in  fee ;  in  such  a  case  the 
last  remainderman  could  not  maintain  an  action  of  waste  against 
the  first  tenant  for  life,  because  as  the  effect  of  the  action  would 
be  to  forfeit  the  land  for  the  benefit  of  the  ultimate  remainder- 
man, such  a  result  would  be  extremely  unjust  as  against  the 
mesne  tenant  for  life.     The  only  remedy  therefore  which  the 


1  Mayor  of  London  ?'.  Hedger,  18 
Ves.  356. 

2Smallman  v.  Onions,  8  Bro.  C.  C. 
621;  Twort  v.  Twort,  16  Ves.  128; 
Hole  V.  Thomas,  7  Id.  .589;  Hawloy 
V.  Clowes,  2  Johns.  Ch.  122;  Mott 
V.  Underwood,  148  N.  Y.  468.  A 
vendee  under  articles  may  restrain 
the  vendor  from  committing  waste. 
Smith  &  Fleck's  Appeal,  69  Pa.  474. 

3Farrant  v.  Lovel,  .3  Atk.  723; 
Triplett  v.  Parmalee,  16  Neb.  649. 

■<  Millett  r.  Davey,  31  Beav.  470. 

5  Kerr  on  Injunctions,  262;  Brady 


i'.  Waldron,  2  Johns.  Ch.  148; 
C'ooper  V.  Davis,  15  Conn.  5.56; 
Maryland  v.  Northern  R.  (!o.,  18 
Md.  193;  Parsons  v.  Hughes,  12  Id. 
1;  Robinson  i\  Russell,  24  Cal.  467; 
Ensign  v.  Colburn,  11  Paige  t^h.  503; 
Murdock's  Case,  2  Bland,  461;  Sal- 
mon V.  Clagett,  3  Id.  125;  Nelson  i'. 
Pinegar,  .30  111.  473;  Williams  v. 
Chicago  Exhibition  Co.,  188  Id.  19; 
Real  Estate  Trust  Co.  v.  Hatton, 
194  Pa.  451;  High  on  Injimctions, 
§§  445  et  seq.;  Beaver  Lumber  C'o.  o. 
Eccles,  43  Oreg.  400. 


01 8  INJUNCTIONS.  [part  III. 

remainderman  in  fee  would  have,  would  be  an  action  of  trover 
for  the  trees  cut  down.  But  in  equity,  the  ultimate  remainder- 
man was  allowed  to  maintain  a  bill  for  an  injunction ;  ^  and  that 
although  the  remainder  be  contingent.' 

Injunctions  to  restrain  injuries  to  property  are  sometimes 
granted  against  parties  claiming  under  a  hostile  title;  but  these 
are  not,  properly  speaking,  injunctions  to  restrain  waste,  but 
fall  rather  under  the  jurisdiction  to  preserve  property  pending 
litigation,  and  will  be  considered  under  that  head. 

434.  Equitable  Waste. 

Besides  the  ordinary  waste  there  is  also  another  kind  of  the 
same  species  of  injury  to  real  property  which  is  known  by  the 
name  of  equitable  waste. 

Waste  which  a  court  of  equity  will  restrain  as  an  unconscien- 
tious exercise  of  legal  power  is  called  equitable  waste. 

Equitable  waste  arises  where  a  particular  estate  is  granted 
without  impeachment  of  waste,  but  the  particular  tenant  exer- 
cises his  power  in  an  unconscientious  manner.  Thus,  if  a  tenant 
for  life  wantonly  destroys  trees  planted  or  left  standing  around 
the  mansion-house  for  ornament,  such  destruction  will  be  re- 
garded in  equity  as  waste,  although  the  life  estate  was  made 
without  impeachment  of  waste. ^  So,  also,  the  cutting  of  saplings 
or  young  trees,  not  fit  for  the  purpose  of  timber,  falls  under  the 
head  of  equitable  waste."* 

The  leading  authorities  upon  the  subject  of  equitable  waste 
in  England  are  Vane  v.  Lord  Barnard,*^  and  Garth  v.  Sir  John 
Hind  Cotton.*^  The  former  was  a  case  of  outrageous  destruction ; 
foi'  Lord  Barnard,  who  was  tenant  for  life,  without  impeachment 
of  waste,  of  Raby  Castle,  had  stripped  the  castle  of  the  lead,  iron, 
glass,  etc.,  and  was  proceeding  to  ])ull  it  down,  when  he  was 
stopped  by  an  injunction. 

But  the  court  will  not  interfere  if  the  matters  complained  of 
are  of  a  trivial  nature,  for,  as  Lord  Hardwicke  observed  in  speak- 
ing of  Vane  v.  Barnard,  if  the  clause  without  impeachment  of 

1  See  Garth  v.  Sir  John  Hind  Cot-  ■«  Hole  v.  Thomas,  7  Ves.  589. 
ton,  1  Ves.  Sr.  546;  1  Lead.  Cas.  Eq.  s  Prec.    Ch.    454;    1    Salk.    161;    2 
697  (4th  Am.  ed.).  Vern.  738. 

2  Peterson  v.  Ferrell,  127  N.  C.  6  ;}  Atk.  751;  1  Lead.  Cas.  Eq.  697 
169.                          •  (4th   Eng.   ed.).     See   Baker  v.  Se- 

3  Micklethwait  v.  Micklethwait,   1  bright,  13  Ch.  D.  179. 
De  G.  &  J.  504. 


CH.  II.]  INJUNCTIONS.  619 

waste  could  be  made  use  of  to  permit  a  son  to  call  his  father  into 
a  court  of  equity  for  every  altei-ation  he  might  make  in  pulling 
up  the  floor  of  the  house,  it  would  have  been  better  for  the  pub- 
lic that  Ral^y  Castle  should  have  been  })ulled  down  than  that 
such  a  precedent  should  have  been  set.^  The  ingredient  of  malice 
does  not  appear  to  be  necessary  t(j  constitute  equitable  waste. 
Such  waste  may  be  committed  although  no  bad  motive  may 
exist.- 

435.  Destructive  Trespass  ;  origin  of  jurisdiction  in  such 
cases. 

The  next  ground  for  an  injunction  which  requires  considera- 
tion is  Trespass. 

The  jurisdiction  of  the  Court  of  Chancery  to  restrain  destruc- 
tive trespass  is  of  comparatively  modern  origin.  The  earliest 
case  is  that  of  Flamang,  decided  by  Lord  Thurlow,  and  men- 
tioned by  Lord  Chancellor  Eldon  in  Hanson  v.  Gardiner.-"*  "  I 
have  a  note,"  said  Lord  Eldon,  "of  a  remarkable  case  in  which 
the  name  of  one  of  the  parties  was  Flamang.  There  was  a 
demise  of  a  close  A.  to  a  tenant  for  life,  the  lessor  being  land- 
lord of  an  adjoining  close  B.  The  tenant  dug  a  mine  in  the 
former  close.  That  was  a  waste  from  the  privity.  But  when 
we  asked  an  injunction  against  his  digging  in  the  other  close, 
through  a  continuation  of  his  woi'king  in  the  former  close,  Loi'd 
Thui-low  hesitated  much,  but  did  at  last  grant  the  injunction, 
fii'st,  from  the  irreparable  ruin  of  the  ])roperty  as  a  mine;  sec- 
ondly, as  it  was  a  species  of  trade;  and  thirdly,  upon  the  principle 
of  this  court  enjoining  in  matters  of  trespass,  where  irreparable 
damage  is  the  consequence." 

The  jurisdiction  of  a  coiu't  of  equity  to  interfere  upon  the 
last  of  the  three  grounds  mentioned  by  Lord  Thurlow,  is  now 
well  established,  and,  perhaps,  more  so  in  this  country  than  in 
Eny-land.'^ 


'(I* 


1  Pcirs  V.  Peirs,  1  Ves.  Sr.  521.  ■*  See   Merced   v.   Fremont,    7   Cal. 

2  Hawlcy  v.  Clowes,  2  Johns.  Cli.  ol7;  Anderson  v.  Harvey,   10  Ciratt. 
122.  8S0;    Hart   v.    Mayor   of   Albany,    :} 

:*  7  Ves.  3n.").    See,  also,  Stevens  ?•.  Paige   Ch.    213;    9    Wend.    571;    De 

Beekman,  1  Johns.  Ch.  Ml;  Troy  &  Veney  v.  Gallagher,  20  N.  J.  Eq.  33; 

Boston  R.  Co.  v.  Boston,  etc.,  R.  Co.,  London,  etc.,  R.  Co.  v.  Lancashire, 

86  N.  Y.  107;  Butte  and  Boston  Miii.  etc.,  R.  Co.,  L.  R.  4  Eq.  174;  Ryan 

Co.  V.  Montana  Ore  Purchasing  Co.,  v.    Brown,    IS    Mich.    196;    Mussel- 

24  Mont.  125.  man  v.  Marquis,  1  Bush,  463;  Henry 


()2() 


IXJL  NOTIONS. 


[part  III. 


The  frequency  of  the  acts  of  trespass  constitute  another 
ground  for  the  jurisdiction.^  The  common-law  action  for  dam- 
ages furnishes  an  adequate  redress  for  a  single  trespass,  or  even 
for  several,  where  there  are  no  circimistances  to  indicate  that 
the  unlawful  acts  are  to  be  repeated  continuously;^  but  where 
these  acts  of  trespass  are  constantly  recurring,  and  threaten  to 
continue,  it  is  settled  that  they  may  be  redressed  in  equity  by 
injunction.'^ 


V.  Koch,  80  Ky.  391;  Echelkamp 
V.  Schrader,  45  Mo.  705;  Phillips  v. 
Bordman,  4  Allen,  147;  Wilcox  v. 
Wheeler,  47  N.  H.  488;  Livingston 
V.  Livingston,  6  Johns.  Ch.  497;  Wat- 
son V.  Sutherland,  5  Wall.  74  (stated 
ante,  p.  57) ;  Mayor  of  Baltimore  r. 
Appold,  42  Md.  442;  Ford  v.  Bur- 
leigh, 60  N.  H.  278;  Lumber  Co.  v. 
Hines,  126  N.  C.  254;  Smith  v.  Gard- 
ner, 12  Oreg.  221;  Lemmon  v.  Town 
of  Guthrie  Centre,  113  la.  36;  Story's 
Eq.  Jur.  §  928;  High  on  Injunc.  Ch. 
X.;  Watson  v.  Ferrell,  34  W.  Va.  406. 

1  Grubb's     Appeal,     90     Pa.     228; 
Booher  v.  Browning,  169  Pa.  18. 

2  Id. 

3  Stewart's  App.,  56  Pa.  422; 
Scheetz's  App.,  35  Id.  88;  Comm.  ik 
Pitts,  and  Connellsville  R.  Co.,  24 
Id.  159;  Sterling's  App.,  Ill  Id.  41; 
Keppel  V.  Lehigh  C.  &  N.  Co.,  200 
Id.  652;  Musselshell  Cattle  Co.  v. 
Woolfolk,  34  Mont.  126;  Owens  v. 
Cro.s.sett,  105  111.  354;  Poughkeepsie 
Gas  Co.  V.  Citizens'  Gas  Co.,  89  N.  Y. 
493;  Ford  v.  Burleigh,  60  N.  H.  278; 
Providence  Steamboat  Co.  v.  Fall 
River,  183  Mass.  535;  Matteson  v. 
Whaley,  20  R.  I.  (Part  III.)  8; 
Story's  Eq.  Jur.  §§  925-927;  Ladd 
V.  Osborne,  79  la.  93;  Ellis  v.  Wren, 
84  Ky.  254;  Lembeck  v.  Nye,  47 
Ohio,  336;  Balto.  Belt  R.  Co.  v.  Lee, 
75  Md.  596;  Edwards  r.  Haeger, 
180  111.  99;  Muldrick  r.  Brown,  37 
Oreg.  185;  GobeiUe  v.  Meunier,  21 
R.  I.  103;  Blondell  v.  Consol.  Gas 
Co.,  89  Md.  732;  McClellan   v.  Tay- 


lor, 54  S.  C.  430;  Davis  v.  Franken- 
lust,  118  Mich.  494;  Sillasen  v.  Win- 
terer, 76  Neb.  52;  Keil  i\  Wright, 
135  la.  383;  Taylor  v.  Pearce,  179 
111.  145;  Burrall  v.  American  Tele- 
phone Co.,  224  111.  266;  Colliton  v. 
Oxborough,  86  Minn.  361;  Mendelson 
?'.  McCabe,  144  Cal.  233;  Huxford 
V.  Southern  Pine  Co.,  124  Ga.  181; 
Barbee  v.  Shannon,  1  Ind.  Ter.  199; 
Negaunee  Iron  Co.  v.  Iron  Chffs  Co., 
134  Mich.  264;  Cobia  v.  Ellis,  149  Ala. 
108;  Miller  v.  Hoeschler,  121  Wis. 
558;  De  Pauw  v.  Oxley,  122  Wis. 
656;  Mendenhall  v.  School  District, 
76  Kan.  173;  Ainsworth  v.  Club,  153 
Mich.  185;  Lambert  v.  Railroad,  212 
Mo.  692;  Hackney  )'.  Mclninch,  79 
Neb.  128;  especially  where  they 
threaten  to  ripen  into  an  easement. 
Murphy  v.  Lincoln,  63  Vt.  278. 

Where  there  is  a  continuing  tre.s- 
pass  by  a  number  of  parties,  and  a 
suit  of  law  could  only  determine 
a  particular  controversy  at  a  par- 
ticular time,  a  court  of  equity  may 
meet  such  an  unusual  emergency 
and  by  a  comprehensive  decree  de- 
termine finally  the  controversy  be- 
tween the  parties,  avoid  a  multi- 
plicity of  suits  and  conserve  the 
public  interest;  as,  e.  g.,  a  plaintiff 
railway  company  was  allowed  to 
maintain  a  suit  against  hackmen 
combined  together  in  disregard  of 
its  regulations,  enjoining  them  from 
congregating  upon  the  sidewalk  ad- 
jacent to  its  terminal  so  as  to  inter- 
fere with  the  ingress  and  egress  of 


CH.  II.] 


INJUNCTIONS. 


621 


A  suit  in  equity  is  generally  the  only  adequate  remedy  for 
ti'espasses  continually  repeated,  because  constantly  recurring 
actions  for  damages  would  be  more  vexatious  and  expensive 
than  effective.^ 

The  cases  m  which  the  courts  have  interfered  have  been  di- 
vided into  two  general  classes:  first,  where  the  party  seeking 
relief  is  not  in  possession ;  and,  second,  where  he  is  in  possession.^ 
The  first  class  of  cases  will  more  ])roperly  be  considered  under 
the  jurisdiction  of  the  court  to  preserve  property  pending  litiga- 
tion, because  the  injury  inflicted  upon  a  person  who  has  a  title 
to  property,  but  who  is  not  in  possession  of  the  same,  cannot 
strictly  be  considered  as  a  trespass.  But  the  second  class  of 
cases,  that,  namely,  which  embraces  the  instances  wherein  a 
party  in  posse.ssion  is  injured  by  acts  of  trespass,  falls  strictly 
within  the  equitable  reme^dy  now  under  consideration.  Thus, 
in  the  case  before  Lord  Thurlow,  just  cited,  the  injury  which 
was  the  subject  of  the  injunction  was  inflicted  against  a  party 
in  possession  of  close  B. 

436.  Subdivisions  of  the  subject. 

Acts  of  destructive  trespass  may  be  again  subdivided  into 
two  classes:  first,  those  which  are  connnitted  under  color  of 
title;  and,  second,  those  which  are  committed  by  a  party  who 
is  avowedly  a  stranger.^  In  both  of  these  cases,  in  order  to  in- 
voke the  equitable  remedy  by  injunction,  the  injury  must  be 
of  such  a  nature  as  not  to  be  susceptible  of  adequate  pecuniary 
compensation  in  damages.  Equity  will  not  interfere  to  restrain 
a  trespasser  simply  because  he  is  a  trespasser."*    The  injury  com- 


passengers.  Donovan  v.  Pennsylva- 
nia Company,  199  U.  S.  279. 

1  United  States  Freehold  L.  &  E. 
Co.  r.  Gallegos,  32  C.  C.  A.  475.  See, 
also,  Boston  &  Maine  R.  R.  Co.  v. 
Sullivan,  177  Mass.  280. 

-  Lowndes  v.  Bettle,  o3  L.  J.  Ch. 
451. 

3  Id.  See,  also,  Watuppa  Reserv. 
Co.  ;;.  Fall  River,  154  Mass.  :J05. 

*  Gates  V.  Johnston  Lumber  Co., 
172  Ma.=is.  495;  Stevens  v.  Beekman, 
1  Johns.  Ch.  318;  Mulvany  v.  Ken- 
nedy, 26  Pa.  44;  Clark's  App.,  02 
Id.  447;  Minnig's  App.,  82  Id.  377; 
Jerome  v.  Ross,  7  Johns.  Ch.  330; 


Weigel  V.  Walsh,  45  Mo.  560;  Be- 
thune  V.  Wilkins,  8  Ga.  118;  West  v. 
Walker,  3  N.  J.  Eq.  279;  Vanwinkle 
V.  Curtis,  Id.  422;  Ballentine  v. 
Harrison,  37  Id.  560;  Del.,  Lack.  & 
W.  R.  R.  V.  Breckenridge,  55  X.  J. 
Eq.  141 ;  Shipley  v.  Ritter,  7  Md.  408; 
Coker  v.  Simpson,  7  Cal.  340;  Gause 
V.  Perkins,  3  Jon.  Eq.  177;  Parker  v. 
Furlong,  37  Oreg.  248;  Indian  Land 
Co.  v.  Shoenfeh,  135  Fed.  Rep.  484. 
But  will  if  the  trespasser's  conduct 
is  a  continuing  menace  to  the  safety 
of  public  travel — in  this  case  con- 
stantly riding  upon  the  rails  of  a 
railroad  company's  tracks  by  means 


622  INJUNCTIONS.  [part  III. 

plained  of  must  be  ruinous  to  the  property  in  the  manner  in 
which  it  has  been  enjoyed,  and  such  as  permanently  to  impair 
its  future  enjoyment.'  The  application  of  the  rules  upon  this 
subject  must  depend  very  much  upon  the  circumstances  of  the 
particular  case.^  Where  the  damage  is  irreparable  the  solvency 
of  the  defendant  is  of  no  importance. ^  The  insolvency  of  the 
trespasser,  however,  may  afford  a  ground  for  interference,  since 
his  inability  to  respond  in  damages  renders  the  remedy  at  law 
ineffectual.^ 

In  the  case  of  Cowper  v.  Baker, •'^  the  defendant  was  restrained 
from  taking  certain  argillaceous  stones,  necessary  to  the  manu- 
facture of  a  patent  cement,  under  the  sea.  Lord  Eldon  con- 
sidered the  damages  there  done  to  the  plaintiff  to  be  irrepara- 
ble, not  because  it  was  a  destruction  simpliciter,  but  because  it 
was  a  taking  away  of  the  substance  of  the  inheritance.  In  like 
manner,  an  injunction  has  been  issued  to  restrain  the  working 
of  oil  wells,  the  result  of  which  would  be  a  permanent  and  con- 
tinuing nijury  to  the  property.*^  Upon  the  same  principle,  trus- 
tees of  a  corporation  may  enjoin  pretended  trustees  from  inter- 
meddling with  the  corporate  property  where  the  trespass  goes  to 
the  destruction  of  the  property  in  the  character  in  which  it  was 
enjoyed.^     The  general  prmciples  which  govern  cases  of  this 

of  a   bicycle.     Atchison  Ry.   Co.   v.  v.  Hill,  46  N.  J.  Eq.  367.     See,  also, 

Spaulding,  69  Kan.  431.     The  tres-  cases   cited   in   preceding   note,   and 

pass  must  amount  to  an  irreparable  Parker    v.    Furlong,    37    Oreg.    248; 

injury  to  the  estate.    Moore  r.  Halli-  Moore    v.    Halliday,    43    Oreg.    243; 

day,  43  Oreg.  243.  Kistler  v.   Weaver,    135   N.   C.   388; 

1  Echelkamp  v.  Schrader,  45  Mo.  Marcum  v.  Marcum,  57  W.  Va.  285. 
505;  Jerome  v.  Ross,  7  Johns.  Ch.  ^  17  Ves.  128.  See,  also,  Merced 
315;  Mayor  of  Fretlenck  v.  Groshon,  ?-.  Fremont,  7  Cal.  317;  Anderson  v. 
30  Md.  436;  Bolsa  Land  Co.  r.  Bur-  Harvey,  10  Gratt.  386;  U.  S.  v.  Gear, 
dick,  151  Cal.  254.  3  How.  120;  Davis  v.  Reed,  14  Md. 

2  Thomas  r.  Nautahala  Co.,  8  U.  S.  152. 

,\pp.  429.  6  AUison  &  Evans's  App.,  77   Pa. 

3  Edwards  r.  Haeger,  180  111.  99;  221.  See,  also,  Westmoreland  Nat. 
Callaway  (,'.  Webster,  98  Va.  790;  Gas  Co.  v.  De  Witt,  130  Id.  251  (a 
Myers  v.  Hawkins,  67  Ark.  413.  case  of  interference  with  the  flow  of 
See  Heaney  v.  B.  &  M.  Com.  Co.,  10  natural  gas);  Duffield  v.  Hue,  136 
Mont.  590,  contra.  Id.  602;  Real  Estate  Co.  v.  Hatton, 

4  Musselman  v.  Marquis,  1  Bush,  194  Id.  450;  Moore  v.  Jennings,  47 
463;  Hicks  v.  Compton,  18  Cal.  206;  West  Va.  181,  and  Scully  v.  Rose, 
Britton  v.   Hill,   27   N.   J.   Eq.   389;  61  Md.  408. 

Piper  V.   Piper,   38   Id.   81;   I,ong  v.  7  Trustees  *;.  Hoessli,  13  Wis.  348. 

Kasebeer,  28  Kan.  262.     See  Wilson      The  decision  in  this  case  was  put 


CH,  II.] 


INJUNCTIONS. 


623 


kind  were  well  laid  down  by  Vice-Chancellor  Kindersley  in  the 
case  of  Lowndes  v.  Bettle.^  "Where,  therefore,"  says  that 
learned  judge,  "the  plaintiff  is  in  possession,  and  the  person 
doing  the  acts  complained  of  is  an  utter  stranger,  not  claiming 
under  color  of  right,  the  tendency  of  the  court  is  not  to  grant 
an  injunction  unless  there  are  special  circumstances,  but  to  leave 
the  plaintiff  to  his  remedy  at  law,'  though  where  the  acts  tend  to 
the  destruction  of  the  estate  the  court  will  grant  it.^  But  where 
the  party  in  possession  seeks  to  restrain  one  who  claims  by  ad- 
verse title,  then  the  tendency  will  be  to  grant  the  injunction, 
at  least  where  the  acts  done  either  did  or  might  tend  to  the  de- 
struction of  the  estate."  "• 


437.  Public  companies  ;  restrained  from  improperly  tak- 
ing land. 

Under  the  head  of  injunctions  to  restrain  destructive  trespass 
may,  perhaps,  fall  many  of  the  cases  in  which  pubhc  companies 
are  restrained  from  an  improper  exercise  of  their  statutory 
rights  to  take  private  property  for  their  own  use ;  although  some 
of  the  cases  of  this  description  may  more  properly  be  classed 
under  "Injunctions  against  Corporations." 

In  cases  of  trespass  by  corporations,  courts  of  equity  will  act 
with  greater  promptness,  and  will  apply  more  stringent  rules, 
than  in  the  case  of  trespass  by  private  individuals.  There  is 
ji.n  equity  to  keep  corporations  within  the  strict  hmits  of  their 
statutory  j^owers,  and  prevent  them  from  deviating  in  the 
smallest  degree  from  the  terms  prescribed  by  the  statute  which 
gives  them  authority.  A  man  has  a  right  to  say  that  a  corpo- 
ration shall  not  enter  upon  his  land  except  upon  the  terms,  and 
under  the  regulations,  prescribed  by  statute ;  and  he  has  a  further 
right  to  invoke  the  aid  of  a  court  of  equity  to  protect  him  b}- 


upon  the  ground  of  destructive  tres- 
l)Mss,  but  it  would  seem  that  it  might 
have  been  sustained  under  the  gen- 
eral jurisdiction  of  chancery  to  pro- 
tect charities  and  enforce  religious 
trusts. 

t  33  L.  J.  Ch.  451. 

2  Lynch  v.  Union  Ins.  for  Savings, 
159  Mass.  306. 

3  Camp    V.    Dixon,    112    Ga.    874; 
Dimick  v.  Shaw,  3')  ('.  C.  A.  347. 

^  See  Duncan  v.  The  Iron  Works, 


136  Pa.  478,  for  a  case  in  which  the 
court  declined  to  interfere,  because 
in  view  of  the  defendant's  denial  of 
the  plaintiff's  legal  title,  it  was  held 
that  the  plaintiff  must  first  estab- 
lish his  right  at  law.  See,  also,  Kan., 
etc.,  R.  Co.  V.  Glen  Jean,  etc.,  R. 
Co.,  45  W.  Va.  119;  Johnson  v. 
Hughes,  58  N.  J.  Eq.  406,  the  state- 
ment of  the  rule  in  Mowday  v. 
Moore,  133  Pa.  611,  as  quoted  in 
§  440,  post. 


624 


INJUNCTIONS. 


[part  III. 


its  writ  of  injunction.'  But  the  purpose  of  the  bill  must  be 
bona  fide,  simply  to  prevent  damage  to  the  plaintiff's  pi'opcrty. 
If  it  is  filed  to  attain  some  other  end,  such  as  the  prevention 
of  competition  among  railroad  companies,  the  relief  will  be 
denied. - 

438.  Nuisance. 

Another  injury  to  real  property,  to  redress  which  it  has  been 
found  necessary  to  resort  to  the  equitable  remedy  of  injunction, 
is  Nuisance;  and  the  authority  of  the  court  is,  in  modern  times, 
probably  as  frequently  applied,  and  as  beneficially  exercised,  in 
this  as  in  any  other  branch  of  equity  jurisprudence.^ 

A  nuisance  is  an  act,  unaccompanied  by  an  act  of  trespass, 
which  causes  a  substantial  injury  to  the  corporeal  or  incorporeal 
hereditaments  of  other  persons.  Where  a  man  wrongfully  dis- 
turbs another  in  the  exclusive  enjoyment  of  property,  he  com- 
mits an  act  of  trespass;  but  where  the  infringement  of  the  right 
is  the  consequence  of  an  act  which  is  not,  in  itself,  an  invasion  of 


1  See  Kemp  v.  London  &  Br.  Ry., 
1  Raihv.  Cas.  495;  Bell  v.  Hull  & 
Selby  Ry.,  Id.  635;  BVewin  v.  Lewis, 
4  Myl.  &  Cr.  249;  Tinkler  r.  Metro- 
politan Board  of  Work.s,  2  De  (J.  & 
J.  261;  Jarden  v.  Phila.,  W.  &  B. 
R.  Co.,  3  Whart.  502;  Bonaparte  v. 
Camden  &  Amboy  R.  Co.,  Baldwin, 
205;  Mclntyre  v.  Storey,  80  111.  127; 
Manchester  Cotton  Mills  v.  Man- 
chester, 25  Gratt.  827;  Wilkin  v. 
City  of  St.  Paul,  33  Minn.  181; 
Western  Pa.  R.  Co.'s  Appeal,  104 
Pa.  399;  Kerr  on  Injunctions,  296; 
Wright  V.  Shanahan,  61  Hun,  264. 
Among  the  more  recent  cases  are, 
Birmingham  Tract.  Co.  v.  Birming- 
ham Ry.  &  Elec.  Co.,  119  Ala.  129; 
City  Council  v.  Scmle,  121  Id.  609; 
Haw.  Com.  &  S.  Co.  v.  Kahului  R. 
Co.,  11  Hawaii,  479;  O'Connell  v. 
Chicago  Terminal  R.  R.  Co.,  184 
III.  308;  Davenport  Bridge  Ry.  Co. 
V.  Johnson,  188  Id.  472;  Corby  ?■. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  150 
Mo.  457;  Stolze  v.  Milwaukee  &  Lake 
Winnebago    R.    Co.,    104    Wis.    47; 


Cowan  V.  Southern  Ky.  Co.,  118  Ala. 
554;  Coyne  v.  Warrior  Southern  Ky., 
137  Id.  553;  Mobile  &  Mont.  Ry.  Co. 
V.  Ala.  Mid.  Ry.  Co.,  123  Id.  145 
(where  the  ground  of  the  jurisdiction 
was  stated).  The  case  of  Mobile  & 
Montg.  Ry.  Co.  v.  Ala.  Mid.  Ry.  Co., 
116  Ala.  51,  seems  to  have  been  an 
exceptional  one.  Spalding  v.  Ma- 
comb &  W.  I.  Ry.  Co.,  225  111.  585. 

2  Ocean  City  R.  Co.  v.  Bray,  55 
N.  J.  Eq.  101,  8.39;  Id.  57;  Id. 
164. 

•<  Where  it  is  sought  to  enjoin  a 
lawful  business  as  a  nuisance,  the 
court  will  consider  the  compara- 
tive injury  which  will  result  from 
the  granting  or  refusing  of  an  in- 
junction, and  it  will  not  be  granted 
where  it  would  be  inequitable  and 
oppressive,  as  where  it  would  cause 
a  large  loss  to  defendant  or  others, 
while  the  injury,  if  it  is  refused,  will 
be  comparatively  slight  and  can  be 
compensated  by  damages.  Mountain 
Copper  Co.  v.  United  States,  142 
Fed.  Rep.  625. 


CH.  II.] 


INJUNCTIONS. 


625 


property,  the  cause  from  which  an  injury  flows  is  termed  a 
nuisance.^ 

Nuisances  are  either  public  or  private.  A  private  nuisance 
is  an  injury  to  the  property  of  an  individual.  A  public  nuisance 
is  an  injury  to  all  persons  who  come  within  the  sphere  of  its 
operation.^ 

439.  Remedies  at  comiuoii-law  ;  their  defects. 

The  remedy  for  public  nuisance  is  by  information  by  the 
attorney-general.  The  attorney-general  may  likewise  proceed  by 
a.  bill  in  equity;  and  if  an  individual  has  also  sustained  special 
damage  over  and  above  the  public  injury  (but  not  otherwise),^ 
he  also  may  proceed  by  bill.'*  The  right  of  the  attorney-general 
to  proceed  by  bill  in  case  of  ]:)iiblic  nuisance  was  exercised  on  be- 
half of  the  ;;cneral  government  in  a  celebrated  case,  in  which  an 
injunction  was  granted  to  restrain  certain  persons — defendants 
in  the  cause — from  interfering  with  the  transportation  of  mails, 
or  with  the  enjoyment  of  railroad  facilities,  by  individuals  and 


1  Kerr  on  Injunctions,  332.  But 
to  constitute  a  nuisance,  the  injury 
must  be  one  to  property,  or  to  its 
enjoj-ment;  and  unless  rights  in  or 
to  property  are  affected,  equity  can- 
not treat  the  wrong  as  a  nuisance. 
Hence  it  was  decided  in  Northern 
Pac.  R.  R.  V.  Whalen,  149  U.  S.  162, 
tliat  a  railroad  company  could  not 
maintain  a  suit  in  the  nature  of  a 
bill  to  restrain  a  nuisance  against 
the  proprietors  of  saloons  at  which 
the  company's  employes  got  drunk, 
for  the  company  had  no  property 
in  its  employes. 

2  See  Soltau  r.  De  Held,  2  Sim. 
(x.  s.)  142.  A  conspiracy  by  one 
l)crson  entered  into  with  another  to 
deprive  an  individual  of  the  benefit 
of  a  property  right  is  unlawful  and 
may  be  enjoined.  Garst  v.  Charles, 
187  Mass.   144. 

3  Rhymer  r.  Fretz,  206  Pa.  230. 

<  Corning  v.  Lowerre,  6  Johns.  Ch. 
439;  City  of  St.  Louis  v.  Knapp,  6 
Fed.  Rep.  221;  Soltau  r.  Dp  Held, 
9    Eng.    L.    &    Eq.    104;    Knox    v. 

40 


New  York,  55  Barb.  404;  Cronin  v. 
Bloemecke,  58  N.  J.  Eq.  313;  Sa\au- 
nah,   etc.,   R.  Co.   v.  Shiels,   '.i'A  Ga. 
601;  State  v.  The  Ohio  Oil  Co.,  150 
Ind.    21;    Reyburn    r.    Sawyer,    135 
N.  C.  328;  Ewell  v.  Greenwood,  26 
la.   377;    Roberts   v.    Mathews,    137 
Ala.    523;    Whitfield    v.    Rogers,    26 
Miss.  84;  Richi  c.  Chattanooga  Brew- 
ing  Co.,    105   Tenn.    651;    Black    v. 
Phila.  &  Read.  R.  Co.,  58  Pa.  249; 
Bunnell's  Appeal,   69   Id.   62;  Com- 
missioners r.  Long,  1  Pars.  Eq.  Cas. 
143;  Commonwealth  v.  Rush,  14  Pa. 
186;  City  of  Georgetown  v.  Alexan- 
dria Canal  Co.,  12  Pet.  98;   Hilliard 
on    Injunctions,   336   (3d   Am.   ed.); 
.Jones  c.  Bright,  140  Ala.  268;  Young 
;:.  Rothrock,  121  la.  588;  Viebahn  v. 
Board  of   Commissioners,    96    Minn. 
276;  Birmingham  Ry.  v.  Moran,  151 
Ala.  187:  Bent  v.  Trimboli,  61  W.  Ya. 
509;  Wilkinson  Co.  ?».  Mcllquam,  14 
Wyo.  209;  Thomas  v.  Wade,  48  Fla. 
311;  Letherman  v.  Hauser,   77  Neb. 
731. 


626  INJUNCTIONS.  [part  111. 

corporations  who  were  engaged  in  interstate  commerce.  The 
injunction  having  been  disobeyed,  an  attachment  for  contempt 
was  issued,  followed  by  commitment,  and  thereafter  the  ques- 
tions involved  were  brought  before  the  Supreme  Court  of  the 
United  States  on  petition  for  a  habeas  corpus  by  the  defendants 
in  the  equity  suit  who  had  been  thus  imprisoned  for  violation 
of  the  chancery  decree.  The  petition  for  the  writ  of  habeas  corpus 
was  denied,  and  the  jurisdiction  of  courts  of  equity,  in  proper 
cases,  to  restrain  strikes,  boycotting,  and  interference  with  the 
employment  of  labor  by  violence  or  intimidation,  was  fully 
sustained.  The  ground  upon  which  the  ruling  was  placed  was 
that  equity  has  jurisdiction  to  enjoin  public  nuisances;  and 
it  was  held  that  this  jurisdiction  could  properly  be  invoked  in 
behalf  of  the  United  States  for  the  protection  of  the  mail,  and 
of  interstate  commerce,  and  of  roadways  and  water-ways,  by 
means  of  which  the  mails  were  transported  and  interstate  com- 
merce carried  on.^  The  interference  with  commerce  was  ac- 
companied by  violence  and  bloodshed,  and  it  was  urged  in  this 
case  that  the  proper  branch  of  remedial  law  to  be  invoked  was 
the  criminal  law,  and  that  courts  of  equity  did  not  grant  in- 
junctions against  crime.  The  Supreme  Court,  however,  declined 
to  take  this  view,  and  quoted  with  approval  the  language  of  an 
Alabama  court,  in  which  it  was  said  that  "the  mere  fact  that 
an  act  is  criminal  does  not  divest  the  jurisdiction  of  equity  to 
prevent  it  by  injunction,  if  it  be  also  a  violation  of  i)roperty 
rights,  and  the  party  aggrieved  has  no  other  adequate  remedy  for 
the  prevention  of  the  irreparable  injury  which  will  result  from 
the  failure  or  inability  of  a  court  of  law  to  redress  such  rights."  ' 

1  In  re  Debs,  158  U.  S.  564.  See,  The  Columbian  Athletic  Club  i'.  State, 
also,  Arthur  v.  Oakes,  24  U.  S.  App.  14,3  Ind.  98;  Vegelahn  v.  Guntner, 
239;  Bloomfield  Gravel  Min.  Co.  v.  167  Mass.  92;  Att.-Gen.  v.  Paterson, 
United  States,  32  C.  C.  A.  98;  Stam-  58  N.  J.  Eq.  1;  State  v.  Zachritz,  166 
ford  V.  Stamford  Horse  R.  R.  Co.,  Mo.  307.  "While  a  Federal  court 
56  Conn.  381;  City  of  Georgetown  r.  cannot  interfere  in  a  criminal  case 
Alexandria  Canal  Co.,  12  Pet.  91-98;  already  pending  in  a  state  court, 
State  of  Pennsylvania  v.  Wheeling  and  while,  as  a  general  rule,  a  court 
Bridge  Co.,  13  How.  518;  O'Neil  v.  of  equity  cannot  enjoin  criminal 
Behanna,   182  Pa.  2.36.  proceedings,  those  rules  do  not  apply 

2  Mobile  ?'.  Louisville  &  Nashville  when  such  proceedings  are  brought 
Railroad,  84  .\la.  115,  126;  Cranford  to  enforce  an  alleged  unconstitu- 
V.  Tyrrell,  128  N.  Y.  341;  Klein  v.  tional  state  statute,  after  the  un- 
Livingston  Club,  177  Pa.  224-228;  constitutionality  thereof  has  be- 
Gilcrest  v.  Des  Moines,  128  la.  49;  come  the  subject  of  inquiry  in  a  suit 


CH.  II.] 


INJUNCTIONS. 


627 


The  jurisdiction  of  eqiiit.y  to  enjoin  strikes  and  boycotts  and 
other  interferences  with  lawfid  occupations/  has  been  exercised 
in  numerous  cases  and  is  sometimes  put  on  the  ground  of  enjoin- 
ing nuisances,  and  sometimes  on  the  ground  of  stopping  repeated 
trespasses.  In  Lyons  v.  Wilkins  there  was  a  strike  against  the 
j)laintiffs  by  order  of  the  society  of  which  the  defendant  was 


l)cnding  in  a  Federal  court  which 
has  first  obtained  jurisdiction  there- 
over; and  under  sucli  circumstances 
the  Federal  court  has  the  right  in 
both  civil  and  criminal  cases  to 
hold  and  maintain  such  jurisdiction 
to  the  exclusion  of  all  other  courts." 
Ex  parte  Young,  209  U.  S.  123.  A 
railway  may  maintain  injunction 
against  dealing  in  tickets  issued  for 
special  occasions  at  reduced  rates. 
and  marked  not  transferable.  Lj^le 
V.  Ry.  Co.,  100  Tex.  292. 

1  The  term  boycott  has  been  de- 
fined as  "  a  combination  of  individ- 
uals refusing  to  have  business  deal- 
ings with  another  until  he  removes 
or  ameliorates  conditions  which  are 
(^leemed  inimical  to  the  welfare  of 
the  members  of  the  combination, 
or  some  of  them,  or  grants  con- 
cessions which  are  deemed  to  make 
for  that  purpose."  Lindsay  v.  Fed- 
eration of  Labor,  37  Mont.  264.  Un- 
der the  authority  of  this  case  a 
labor  organization  using  the  boy- 
cott does  not  commit  an  unlawful 
act  restrainable  by  injunction,  even 
though  loss  results  to  the  party 
boycotted  unless  the  means  em- 
ployed to  enforce  the  boycott  are 
themselves  unlawful.  The  giving  of 
notices  that  the  boycotted  has  been 
placed  on  the  "unfair  list"  is,  in 
certain  cases,  sufficient  to  establish 
such  unlawful  act,  Wilson  v.  I  ley, 
232  111.  ;;89;  and  where  the  combi- 
nation of  laborers  is  for  the  purpose 
of  compelling  a  manufacturer  to 
unionize  his  works  on  pain,  if  he 
refuses,  of  a  boycott  of  his  goods  in 


other   states   than   his   own,    such   a 
combination  is  illegal  as  in  restraint 
of  interstate  commerce  or  trade  un- 
der the  Act  of  Congress  of  July  2, 
1890,   known  as  the  Anti-trust  Act. 
Loewe    v.    Lawlor,    208    U.    S.    274. 
Where  during  a  strike,   a  labor  or- 
ganization issues  and  posts  circulars 
for  the  purpose  of  inducing  patrons 
to  withdraw  their  patronage,   or  to 
prevent  non-union  labor  from  being 
employed;    and    these    circulars    use 
such   words  as   "unfair,"    "legalized 
highwayman"  and   "scabs,"  such  a 
combination  is  illegal,  and  amounts 
to  an  unlawful  conspiracy  to  inter- 
fere   with    and    destroy    the    lawful 
lousiness    of    another.      And    where 
there  is  also  an  exhortation  by  the 
strikers,  addressed  to  the  public,  not 
to  patronize  the  party  against  whom 
the  strike  is  aimed,  coupled  with  a 
notice  that   the   strikers  had   voted 
to  give  their  patronage  only  to  such 
concerns  as  had  refused  to  continue 
using    such    jjerson's    works,     there 
arises  a  case   where  at  the  suit  of 
the  injured  party,  an  injunction  will 
issue  restraining  the  members  of  the 
striking     combination     from    prose- 
cuting the  objects  of    their   conspir- 
acy.    Bell    Telephone  Co.   v.   Feder- 
ation  of   Labor,  156   Fed.  Rep.  S()9. 
But  in  all  svich  cases  a  substantial 
pecuniary   loss   must   be    shown   by 
the  plaintiff  to  entitle  him  to  an  in- 
junction   without   adequate    remedy 
at  law,  or  else  that  he  is  prevented 
from    earning    his    living    by    such 
combination.       Atkins    v.     Fletcher 
Co.,  65  N.J.  Eq.  658.- 


628 


INJUNCTIONS. 


[part  III. 


the  secretary.  In  the  course  of  this  strike,  the  plaintiffs'  works 
and  also  those  of  a  sub-manufacturer  for  them  were  picketed  by 
persons,  employed  by  the  executive  committee,  who  watched  and 
i)eset  the  plaintiffs'  works  and  those  of  their  sub-manufacturer 
and  the  approaches  thereto,  for  the  purpose  of  persuading  work 
proj)le  to  abstain  from  workhig  for  the  plaintiffs.  It  was  ad- 
mitted that  they  used  no  violence,  intimidation  or  threats,  but 
in  the  oi)inion  of  the  court  the  evidence  showed  that  the  picketing 
and  the  acts  done  by  the  pickets,  were  done  with  a  view  to  com- 
])el  the  plaintiffs  to  change  their  mode  of  conducting  their  own 
business.  An  injunction  was  granted.  The  ruhng  was  affirmed 
on  appeal,  Lindley,  M.R.,  saying: 

"The  truth  is  that  to  watch  or  beset  a  man's  house  with  a 
view  to  compel  him  to  do  or  not  to  do  what  is  lawful  for  him 
not  to  do  or  to  do  is  wrongful  and  without  lawful  authority  un- 
less some  reasonable  justification  for  it  is  consistent  with  the 
evidence.  Such  conduct  seriously  interferes  with  the  ordinary 
comfort  of  human  existence  and  the  ordinary  enjoyment  of  the 
house  beset,  and  such  conduct  would  support  an  action  on  the 
case  for  a  nuisance  at  common  law."  The  same  view  was  also 
expressed  by  Chitty,  L.  J.^ 

pogiaphical  Union,  232  III.  424; 
Reynolds  v.  Davis,  198  Mass.  294. 
Picketing  is  not  unlawful  if  it  be 
used  in  good  faith  for  persuasion, 
argument  and  the  gaining  of  in- 
formation, but  becomes  so  only 
when  used  so  for  the  purpose  of  in- 
timidation, and  intimidation  may  be 
estiibHshed  by  the  placing  of  large 
numbers  of  men  as  pickets  at  a  point 
passed  by  the  non-union  men  whom 
it  is  desired  to  influence.  Goldfield 
Mines  Co.  r.  Miners'  Union,  159 
Fed.  Rep.  500.  But  the  right  of 
a.ssociation  for  the  purpose  of  em- 
ploying pickets  to  support  a  strike 
cannot  be  protected  by  injunction. 
Atkins  V.  Fletcher  Co.,  65  N.  J.  Eq. 
658. 

.\n  injunction  will  be  granted  a 
mill  owner  for  the  protection  of  his 
property  against  a  labor  vmion  which 
seeks,  without  threats  or  commission 
of    violence    or    personal    injury    to 


1  Lyons  v.  Wilkins  [1899],  1  Ch. 
255.  See,  also,  Barr  v.  Essex  Trades 
Council,  .53  N.  J.  Eq.  101;  Vegelahn 
r.  (nmtner,  167  Mass.  92;  Plant  v. 
Woods,  176  Id.  492;  Nat.  Protection 
.V.ss'n  ('.  Cumming,  170  N.  Y.  315; 
H  award  en  ?;.  Youghiogheny  &  Le- 
high Coal  Co.,  Ill  Wis.  545;  Arthur  r. 
Oakes,  24  U.  S.  App.  239;  Hamilton 
Shoe  Co.  V.  Saxey,  131  Mo.  212; 
Cabbell  v.  Williams,  127  Ala.  320; 
Cumberland  Class  Mfg.  Co.  v.  Glass 
Bottle  Blowers'  Ass'n,  ,59  N.  J.  Eq. 
4i);  Beck  v.  Ry.  Teamsters'  Protect- 
ive Union,  IIS  .Mich.  497;  Erdman 
V.  Mitchell,  207  Pa.  79;  Frank  v. 
llerold,  63  N.  .J.  E<i.  443;  Jersey 
City  Print.  Co.  r.  Cassidy,  63  Id. 
759;  My  Maryland  Lodge  r.  .Adt,  100 
Md.  23,8;  Cray  r.  Building  Trades 
Coiiiieil,  91  Minn.  171;  Everett 
Waddey  Co.  '".  Uiphiuoml  I'nion, 
105  Va.  18S;  Goldberg  r.  Stnble- 
men's,    140  Cal.  429;   Byrnes   r.  Ty- 


I 


CH.  II.] 


INJUNCTIONS. 


029 


And  the  jurisdiction  in  such  cases  would  seem  to  have,  under 
the  most  recent  decisions,  a  wider  scope.  In  Glamorgan  Coal 
Co,  V.  South  Wales  Miners'  Federation  ^  it  was  held  that  a  per- 
son who  on  being  asked,  gives  honest  and  bona  fide  advice  to  an- 
other which  induces  him  to  break  a  contract  of  service  with  a 
third  person,  is  not  liable  to  an  action  at  the  suit  of  that  third 
person,  even  though  he  has  sustained  damage  by  the  breach  of 
the  contract,  and  that  the  same  rule  applied  in  the  case  where 
several  persons  have  combined  to  give  advice  if  they  have  no 
malicious  intention  to  injure  the  third  person.  This  ruling  ho\\  - 
ever  was  reversed  in  the  Court  of  Appeals  in  the  case  of  Glamor- 
gan Coal  Co.  V.  South  Wales  Miners'  Federation.^ 

It  appeared  in  that  case  that  the  miners  employed  at  the 
collieries  in  South  Wales,  without  giving  notice  to  their  employ- 
ers, and  in  breach  of  their  contracts  with  them,  abstained  fi'om 
working  on  certain  days  called  "stock  days."  In  doing  so  the 
miners  acted  under  the  direction  or  order  of  a  federation  of  the 
miners  given  by  their  executive  council.  The  object  of  procuring 
this  breach  of  contract  was  to  keep  up  the  price  of  coal  upon 
which  the  amount  of  the  miners'  wages  depended.  It  was  under 
these  circumstances  held  that  the  defendants  were  liable  in  dam- 
ages, there  being  no  sufficient  justification  for  their  interference; 
and  in  the  judgment  of  Romer,  L.  J.,  it  was  said  that  "  in  the  case 
of  a  contract  betw^een  master  and  servant  it  is  not  sufficient  for 
the  person  who  procures  a  breach  by  the  servant  to  show  that 
he  had  no  personal  animus  against  the  master  or  that  it  was  to 
the  interest  of  himself  and  the  servant  that  the  contract  should 
be  broken."  It  was  moreover  intimated  that  an  injunction  v.ould 
be  issued  if  necessary.-'' 

As  to  private  nuisances,  the  injured  party  might  abate  them 
— i.  e.,  he  could  remove  them  without  resorting  to  any  court, 
either  of  law  or  of  equity.    It  was  one  of  the  eases  of  "redress 


coerce  him  in  such  a  way  that  he 
wo\ild  be  compelled  to  employ  only 
union  workmen,  to  submit  himself 
to  the  control  of  the  union,  and  to 
put  himself  within  its  power  to  dic- 
tate to  him  the  number  of  hours  to 
constitute  a  day's  work  in  his  mill, 
the  compensation  to  be  paid  therefor, 
the  time  of  payment  thereof  and  the 
selection  of    his    emploxes.      Purvis 


V.  United  Brotherhood,  214  Pa.  3»S. 

1  [190.3]  1  K.  B.  118. 

■^  [1903]  2  K.  B.  545. 

^  See  to  the  same  effect  Flaccus  i\ 
Smith,  199  Pa.  128;  O'Neill  r.  Bo- 
hanna,  182  Id.  236;  Quinn  r.  Le:i- 
them  [1901],  A.  C.  495,  and  .\llen  /•. 
Flood  [1898],  A.  C.  1;  Beekman  r. 
Marsters,   195  Mass.  205. 


()30 


INJUNCTIONS. 


[part  III. 


by  act  of  party."  That  tliis  mode  of  getting  rid  of  a  nuisance  is 
still  recognized  is  illustrated  by  the  case  of  Lane  v.  Capsey/  where 
the  court  gave  leave  to  a  complaining  party  to  tear  down  an 
inhaljited  dwelling  which  was  alleged  to  be  obstructive,  and 
which  was  in  possession  of  a  I'eceiver  appointed  l)y  the  court, 
in  order  to  t(\st  the  justice  of  the  claim. 

The  remedies  at  common  law  for  a  private  nuisance  were,  an 
action  on  the  case  to  recover  damages,  the  assize  of  nuisance, 
which  lay  originally  only  against  the  wrong-doer,  but  was  sub- 
sequently extended  as  against  the  alienee  by  the  statute  of  West- 
minster the  Second;  and  the  writ  quod  permittat  prosternere, 
which  lay  against  the  alienee  as  well  as  the  wrong-doer,  and  was 
in  the  nature  of  a  writ  of  right.  These  last  two  remedies  fell 
out  of  use  in  England,  and  were  finally  abolished  by  Statute  3 
and  4  V\'[\\.  lY.,  c.  27;  so  that  the  only  remedy  which  remained  in 
use  in  the  common-law  courts  was  the  action  on  the  case  for 
damages. 

It  is  obvious  that  this  remedy  is  very  insufficient.  If  one  man 
is  carrying  on  a  trade  near  another's  house  which  is  injurious 
to  the  health  of  the  latter,  and  desti'uctive  to  his  property,  a  re- 
covery of  damages  is  manifestly  but  a  poor  redress.  Hence 
ecjuity  will  interfere  by  injunction  to  restrain  the  continuance 
of  the  noxious  trade,  and  thus  effectually  put  a  stop  to  the  in- 
jury. This  jurisdiction  in  cases  of  nuisance  is  of  an  ancient  date, 
and  has  been  traced  back  to  the  reign  of  Ehzabeth,^  since  which 
time  it  has  been  continuously  exercised;  and  the  modern  doc- 
trine may  be  stated  in  general  terms  to  be  that  equity  has  con- 
current jurisdiction  with  courts  of  law  in  all  cases  of  private 
nuisance,  the  interference  of  chancery  in  any  particular  case 
l)eing  justified  on  the  ground  of  restraining  irreparable  mischief, 
or  of  suppressing  interminable  litigation,  or  of  preventing  nmlti- 
plicity  of  suits.^ 


i[1891]  3  Ch.  411.  See,  also, 
Fields  V.  Stokley,  99  Pa.  306. 

2  "The  bill  was  to  be  relieved  of  a 
nuisance  committed  by  the  defend- 
ant to  the  plaintiff's  mill,  by  erecting 
a  new  mill  and  turning  or  letting  the 
watercourse  from  servinp  ♦^he  plain- 
tiff's mill;  b<it  for  th^t  the  plaintiff, 
since  the  bill  exhibited,  had  brought 
an  assize  of  nuisance  at  law,  there- 


fore the  cause  is  dismissed,  if  cause 
be  not  shown.  Osburne,  plaintiff, 
Barter  and  Goddins,  defendants. 
Anno  26  Eliz."  Choyce  Cases  in 
Chancery,  p.  176.  (Reprint  of  lS7v1.) 
See  Bitting's  Appeal,  105  Pa.  517;  I 
bricht  V.  Eufaula  W.  Co.,  86  Ala.  587. 
3  Carlisle  v.  Cooper,  21  N.  J.  Eq. 
576;  Baron  v.  Korn,  127  N.  Y.  224. 
Ward  V.  Ohio  River  R.  Co.,  .i.-)  \\'. 


en.  II.]  INJUNCTIONS.  631 

In  modern  times  (as  has  been  already  stated)  the  jurisdiction 
of  Courts  of  Chancery  in  cases  of  nuisance  has  been  very  bene- 
ficially and  very  frequently  exercised,  and  the  whole  doctrine 
of  equity  upon  this  subject  has  been  most  thoroughly  and  care- 
fully considered  both  in  England  and  in  this  country.  Perhnj)s 
no  better  way  of  explaining  the  principles  upon  which  courts  of 
equity  act  in  cases  of  this  kind  can  be  found  than  by  stating 
briefly  one  or  two  of  the  leading  authorities  upon  the  subject, 
and  the  conclusions  which  have  been  reached  therein. 

In  St.  Helen's  Smelting  Company  v.  Tipping  ^  certain  persons 
had  purchased  a  portion  of  an  estate  for  the  purpose  of  erecting 
thereon  works  for  smelting  copper,  and  the  plaintiff  subse- 
quently purchased  another  portion  of  the  same  estate  with  notice 
of  the  erection  and  operation  of  the  smelting  works.  After  this, 
the  company  defendants  were  organized  for  the  purpose  of  carry- 
ing on  the  copper  works  on  a  larger  scale ;  and  the  plaintiff,  having 
discovered  that  injury  had  already  been  done  to  his  trees,  brought 
an  action  at  common  law  for  damages,  and  after  obtaining  a  ver- 
dict and  judgment  (which  was  affirmed  in  the  House  of  Lords), 
filed  a  bill  in  equity  for  an  injunction,  which  was  granted. 

In  this  case  (when  in  the  House  of  Lords)  the  distinction  was 
taken  between  nuisances  which  produce  a  material  injury  to 
property  and  those  things  which  are  alleged  to  be  nuisances 
simply  on  the  ground  that  they  are  productive  of  personal  in- 
convenience. In  the  latter  (;lass  of  cases  a  person  has  no  right 
to  complain  of  individual  discomfort  arising  from  business  in 
the  neighborhood,  if  that  business  is  carried  on  in  a  fair  and 
reasonable  way;  but,  on  the  other  hand,  this  rule  would  not 
apply  to  circumstances  the  immediate  result  of  which  is  a  sen- 
sible injury  to  the  value  of  property.  And  it  was  further  said 
that  while  everything  nmst  be  looked  at  from  a  reasonable  point 
of  view,  and  that  the  law  does  not  regard  trifling  and  small  in- 
conveniences, but  only  those  which  sensibly  diminish  the  com- 
fort, enjoyment,  or  value  of  the  property  which  is  affected ;  yet 
the  fact  of  injury  having  been  found  by  a  jury,  their  verdict 
would  not  be  disturbed;  and  that,  consequently,  the  plaintiff 
was  entitled,  in  the  chancery  suit,  to  an  injunction  to  protect 
his  rights  which  had  been  thus  ascertained  at  law. 

Va.  481 ;  Knapp  v.  Transfer  Ry.  Co.,  i  11  H.  L.  Cas.  642;  L.  R.  1  Ch.  66. 

126  Mo.  26;  Sullivan  v.  Jones  Steel      See  Penna.  Lead  Co.'s  App.,  96  Fa. 
Co.,  208  Pa.  540.  116. 


632 


IN.HXcriONS. 


[part  ITT. 


On  the  other  hand,  when  the  alleged  nuisance  consists  in 
something  which  produces  purely  personal  annoyance  without 
injury  to  the  j^roperty,  except  as  a  subject  of  personal  enjoy- 
ment, the  question  is  emphatically  one  of  degree.  Such  things, 
to  offend  against  the  law,  must  be  done  in  a  manner  which,  be- 
yond fair  controversy,  ought  to  be  regarded  as  exceptive  and 
unreasonable.  Therefore,  in  Gaunt  i'.  Fynney,^  where  trifling 
annoj-ance  had  been  occasioned  by  the  noise  and  vibration  from 
a  silk  mill,  which  had  been  acc]uiesced  in  for  some  time,  the  court 
refused  the  injunction.  Where,  however,  business  which  is 
carried  on  is  physically  offensive  to  the  senses,  and,  therefore, 
by  producing  physical  discomfort,  renders  houses  in  the  neigh- 
l)orhood  unfit  for  residences,  it  will  be  a  nuisance;  and  not  the 
less  so  because  there  may  be  persons  whose  habits  of  life  have 
brought  them  to  endure  the  same  annoyance  without  discom- 
fort.- 

The  same  principles  as  those  laid  down  in  these  cases  have 
been  generally  recognized  and  applied  in  the  courts  throughout 
the  United  States,^  and  in  other  decisions  in  England;  '^  and  the 


1  L.  R.  8  Ch.  8.  See  the  remarks 
on  Gaunt  v.  Fynney  in  Reinhardt  v. 
Mentasti,  42  Ch.  D.  687-688.  In  this 
case  the  defendants  put  up  a  stove 
in  such  a  position  that  the  heat  in- 
jured wine  in  plaintiff's  cellar — in- 
junction granted.  In  Broder  v. 
Saillard,  2  Ch.  D.  692,  Sir  George 
.lessel  said  that  a  man  was  entitled 
lo  the  comfortable  enjoyment  of  his 
dwelling-house,  and  that  if  such 
ordinary,  comfortable  enjoyment 
were  interfered  with,  the  interfer- 
ence was  a  nuisance.  It  was  no 
answer,  he  held,  to  say  that  the  de- 
fendant was  only  making  a  reason- 
(ihle  use  of  his  property;  and  this 
language  was  approved  in  Reinhardt 
)'.  Mentasti  (.s?//»y/).  See  .\ttorney- 
General  n.  Cole  [I'.tOlJ,  1  Ch.  205.  and 
McCaffrey's  .\ppe;il,    10')   Pa.  258. 

2  Cleveland  v.  Citizens'  Gas  Light 
Co.,  20  N.  J.  Eq.  201 ;  Evans  v.  Read- 
ing Chemioal  Co.,  160  Pa.  209. 

3  Rhodes  v.  Dunbar,  57  Pa.  274; 
Richards's    Appeal,    Id.     105;    New 


Boston,  etc.,  Co.  v.  Pottsville  Water 
Co.,  54  Id.  171;  Rodenhausen  v. 
Craven,  141  Id.  546;  Cleveland  v. 
Citizens'  Gas  Light  Co.,  20  N.  J.  Eq. 
201;  Carlisle  v.  Cooper,  21  Id.  576; 
Ross  V.  Butler,  19  Id.  294;  Webber 
V.  Gage,  89  N.  H.  182;  Farrell  v. 
Cook,  16  Neb.  483;  Parker  v.  Win- 
nipiseogee  Co.,  2  Black  (U.  S.),  545; 
McMoran  v.  Fitzgerald,  106  Mich. 
649;  United  States  v.  Luce,  141 
Fed.  Rep.  385;  Froelicher  v.  Oswald 
Ironworks,  111  La.  705;  Madison  v. 
Chopper  Co.,  113  Tenn.  331;  Perrin  v. 
Crescent  City  Co.,  119  La.  83. 

<  Walter  v.  Selfe,  4  De  G.  &  Sm. 
315;  Crump  v.  Lambert,  L.  R.  3  Eq. 
409;  Soltau  v.  De  Held,  2  Sim.  (n.  s.) 
133;  Wood  v.  Sutcliffe,  Id.  163;  Bos- 
tock  V.  North  Stafford  R.  Co.,  5  De 
G.  &  Sm.  584;  Hole  v.  Barlow,  4  C. 
B.  (n.  s.)  334;  Robson  v.  Whitting- 
ham,  L.  R.  1  Ch.  442;  Crossley  v. 
Lightowler,  2  Id.  478;  Att.-Gen.  v. 
Bradford  Canal,  L.  R.  2  Eq.  71; 
Jenkins  v.  Jackson,  40  Ch.  D.  71.    In 


CH,  II.]  I  \  T INTTIOXS.  633 

result  of  the  recent  cases  muy  he  suninied  uj)  in  the  hinguage  of 
Lord  Chancellor  Halsbury  in  Fleming  v.  Hislop/  where  it  is  said 
that  ''what  makes  life  less  comfortable  and  causes  sensible  dis- 
comfort and  annoyance,  is  a  jjropei'  subject  of  injunction." 

440.  How  far  coinplaiiiaiit's  title  at  law  must  be  estab- 
lisbed. 

The  right  to  an  injunction  to  restrain  a  nuisance  depends 
very  often  upon  a  preliminary  question  as  to  the  plaintiff's  legal 
right,  that  is  to  say,  whether  his  legal  right  has  been  admitted 
or  established.  To  illustrate:  suppose  a  bill  is  filed  to  restrain 
a  defendant  from  erecting  a  wall  whereby  the  alleged  ancient 
lights  of  the  complainant  would  be  darkened.  Now,  the  ques- 
tion of  nuisance  or  no  nuisance  in  this  case  would  obviously  de- 
pend upon  the  ascertainment  of  a  preliminary  fact — viz.,  whether 
the  complainant  actually  had  a  right  to  his  windows  as  ancient 
lights^because,  if  he  fails  to  show  this,  or  fails  to  show  that  by 
some  other  means — e.  g.,  a  grant  of  an  easement — he  has  acquired 
the  right  to  unobstructed  windows,  the  act  of  the  defendant  is 
obviously  no  nuisance.' 

And,  in  the  same  way,  if  the  act  complained  of  is  not  a  nuisance 
per  se,  the  question  whether  it  does,  in  fact,  amount  to  a  nuisance, 
must  be  disposed  of,  in  the  hrst  instance,  before  the  complainant's 
right  to  have  it  abated  can  be  considered.^ 

a  locality  devoted   to  noisy  trades,  Fernie  v.   Young,    16   Law  T.   Rep. 

such  as  the  printing  and  allied  trades,  (n.  s.)  637;  White  v.  Booth,  7  Vt.  131 ; 

if  a  printing-house  or  factory  sub-  Boynton  i;.  Hall,  100  Me.  131;Coev. 

jects   the   occupier   of   an   adjoining  Winnipiseogee   Co.,    37    N.    H.    254; 

I'esidence  to  such  an  increase  of  noise  Eastman    v.    Amoskeag  Co.,    47    Id. 

as    to    interfere    substantially    with  71;   Mammoth   Vein  Coal  Co.'s  Ap- 

the  ordinary  comfort  of  luimnn  ex-  pcnl,    'A    Pa.    181;   Brown's  Appeal, 

istence  according  to  the  standard  of  62   Id.   17;   Patterson's  Appeal,    129 

comfort    prevailing    in    the    locahty,  111.   Ill;  Hart  v.  Mayor  of  .\lbany, 

that   is   sufficient    to    constitute    an  3  Paige  Ch.  213;  Reid  r.  Giflord,  6 

actionable  wrong  entitling  that  oc-  Johns.  Ch.  19;  Frizzle  v.  Patrick,  5 

cupier   to  an   injunction.      Rushmer  Jon.  Eq.  3.54;  Caldwell  r.  Knott,  10 

V.    Polsue    [1906],    1    Ch.    234,    aff'd  Yerg.    209;    Arnold    v.    Klepper,    24 

Polsue    V.    Rushmer    [1907],    A.    C.  Mo.  273;  McCord  v.  Iker,   12  Ohio, 

121.  387;  Zinc  Co.  v.  Franklinite  Co.,  13 

1  11  App.  Cas.  686.  See,  also,  N.  J.  Eq.  322;  Durant  v.  William- 
Shelfer  v.  City  of  London  Electric  son,  7  Id.  547;  Carlisle  v.  Cooper,  21 
Co.  [1895],  1  Ch.  287.  Id.  576;  New  York  &  N.  J.  Tel.  Co. 

2  Biddle  v.  Ash,  2  Ashm.  211 ;  Rhea  v.  East  Orange,  42  Id.  490;  High  on 
('.  Forsyth,  37  Pa.  .507;  Mowday  r.  Injunctions,  §486. 

Moore,     133     Id.     611.       See,     also,  H'ity  of  New  Castle  v.  Raney,  130 


634  INJUNCTIONS.  [part  III. 

Now,  if  the  complainant's  legal  right  is  admitted,  or  if  it  be 
clearly  established,  then  his  right  to  an  injunction  is  plain. ^ 
But  if  it  is  manifest  that  the  cohiplainant  has  no  legal  right,  the 
injunction  must  be  refused. 

If  the  case  falls  between  these  two — that  is  to  say,  if  the  com- 
jjlainant's  title  is  doubtful,  the  ordinary  rule  is  not  to  interfere 
until  his  title  has  been  established  at  law.^  Where,  however, 
the  emergency  is  pressing,  and  the  threatened  damage  would  be 
irreparable,  and  the  plaintiff  makes  out  a  fair  prima  facie  title, 
even  though  that  title  may  be  disputed,  in  such  a  case  a  special 
injunction  ought  to  issue,  but  at  the  same  time  the  complainant 
ought  to  take  diligent  steps  to  have  his  legal  right  tried  and  es- 
tablished.^ 

The  tendency  of  the  modern  decisions  is  certainly  very  much 
against  the  old  rule  which  required  the  prior  establishment  of 
the  legal  right;  and  it  has  been  justly  said,  in  a  comparatively 
recent  case,  that  this  tendency  properly  requires  some  restate- 
ment of  the  hmits  of  the  jurisdiction.  Accordingly,  the  modern 
rule  may  be  said  to  be  that  the  threatened  injury  may  be  en- 
joined without  waiting  for  the  establishment  of  the  complain- 
ant's title  at  law,  whenever  the  damage  is  imminent  and  irrep- 

Pa.    546;   Whitmore  v.   Brown,    102  Pa.  582.     A  court  of  equity  will  re- 

Me.  47.  strain  a  threatened  interference  with 

1  See  Gas  Co.  v.  Broadbent,  7  H.  L.  the  exercise  of  a  right  without  a 
Cas.  600;  Denton  v.  Leddell,  23  N.  J.  prior  adjudication  at  law  where  the 
Eq.  64;  Wilmarth  v.  Woodcock,  66  right  is  clear  and  there  is  no  serious 
Mich.  331;  Ferguson's  Appeal,  117  dispute  as  to  any  of  the  material 
Pa.  426;  Bright  v.  Allan,  203  Id.  390;  facts.  It  is  not  enough  for  the  de- 
Wilson  V.  Gather,  214  Pa.  3.  Where  fendant  to  deny  plaintiff's  right; 
plaintiffs  have  only  a  right  of  way  his  denial  must  be  based  upon  facts 
over  the  land  in  question  the  right  which  show  a  substantial  dispute, 
to  an  injunction  does  not  depend  Piro  i\  Shipley,  211  Pa.  36. 
on  whether  the  defendant  has  title  ^  gge  Holsman  v.  Boiling  Spring 
to  the  land  but  whether  the  plain-  Co.,  14  N.  J.  Eq.  335;  Duncan  v. 
tiffs  have  the  title  or  the  right  to  Hayes,  22  Id.  25;  Carlisle  v.  Cooper, 
the  possession  of  it.  If  they  have  21  Id.  576;  McCallum  v.  German- 
neither,  except  as  to  a  right  of  way,  town  Water  Co.,  54  Pa.  40;  Gardner 
they  cannot  contest  the  defendant's  v.  Newburgh,  2  Johns.  Ch.  162; 
right  to  occupy  any  other  part  of  the  Soltau  v.  De  Held,  2  Sim.  (n.  s.)  133; 
premises.  Llewellyn  v.  Cauffiel,  215  Kerr  on  Injunctions,  197,  336,  340; 
Pa.  23.  Baron    v.    Korn,     127    N.    Y.    224; 

-  See  authorities   cited   in   note  2,  Dierks  v.  Comrs.  of  Highways,   142 

page  633;  also  Washburn's  .\pp.,  105  111.  197. 
Pa.   480;   Coward  v.   Llewellyn,   209 


f'H.  II.] 


INJUNCTIONS. 


635 


arable  or  is  not  capable  of  adeciuate  compensation  in  money,'' 
but  the  right  must,  in  such  cases,  be  clear  and  the  facts  u})on 
which  it  rests  un(;ontested.-  "Failing  this,  all  that  the  swift 
hand  of  the  chancellor  will  do  is  to  stay  the  impending  mis- 
chief until  the  facts  are  established  by  the  ancient  and  appi-o- 
priate  tri))unal."  ^ 

Again:  a  court  of  equity  will  not  interfere  if  the  damage  is 
slight,  and  the  nuisance  is  of  a  temporary  character,  so  that 
damages  at  law  would  furnish  an  entire  and  adequate  reparation.^ 
The  nuisance  nmst  be  shown  to  be  habitual.-'"' 

The  nuisance,  moreover,  must  actually  exist,  or  be  imminent. 
A  mere  threat,  or  an  act  which  may  upon  some  contingency  or  at 
some  remote  time  prove  a  nuisance  will  not  warrant  the  intei- 
ference  of  the  court.*^  And  the  injury  must  not  be  contingent 
merely;  and  apprehension  on  the  part  of  the  complainant  of  a 
possible  or  speculative  harm  will  not  be  enough.'^ 

But  where  it  is  clear  that  the  nuisance  will  exist,  an  injunction 
will  be  granted.  Thus  the  building  of  a  sewer  will  be  enjoined, 
where  it  appears  plainly  that  a  stn^am  would  certainly  be  pol- 
luted at  times,  by  the  consecjuent  discharge  of  offensive  matter ; 
and  the  same  relief  was  granted  against  a  cemetery  company 
when  it  was  shown  that  by  the  interment  of  dead  bodies  the 
waters  of  complainants'  wells  would  be  contaminated  and  the 
health  and  lives  of  themselves  and  their  families  endangered.* 

And  where  it  is  shown  that  the  action  of  the  defendant,  if 


1  Ferguson's  Appeal,  117  Pa.  42G; 
Manbeck  v.  Jones,  190  Id.  173. 

■-'  Tex.  &  Pac.  Ry.  v.  Inter-Trans. 
( 'o.,  155  U.  S.  585;  Wahl  v.  Cemetery 
.Association,  197  Pa.  197;  Hicks  v. 
American  Nat.  Gas  Co.,  207  Id.  570; 
Sterling  v.  Littlefield,  97  Me.  479. 

3Mowday  v.  Moore,  133  Pa.  612. 
See,  also,  Earley's  Appeal,  121  Id. 
496,  and  Com.  v.  Stevens,  178  Id. 
543. 

4  Webber  v.  Gage,  39  N.  H.  186; 
Bemis  v.  Upham,  13  Pick.  169; 
Croton  Turnpike  v.  Ryder,  1  Johns. 
Ch.  611;  Richards's  Appeal,  57  Pa. 
105;  Wingfield  v.  Crenshaw,  4  Hen. 
&  Min.  474;  Bradsher  v.  Lea,  3  Ired. 
Eq.  301;  Thebaut  v.  Canova,  11  Fla. 
143;   Healtii   Dept.    v.    Purdon,    99 


N.  Y.  241;  O.sborne  v.  Missouri  Pac. 
Ry.,  147  U.  S.  253;  Doane  v.  Lake 
St.  R.  R.  Co.,  165  111.  518. 

5  Ridge  V.  Penna.  R.  R.  Co.,  58 
N.  J.  Eq.  172. 

«  Kerr  on  Injunctions,  337,  338. 

^Rhodes  v.  Dunbar,  57  Pa.  274; 
Butler  V.  Rogers,  9  N.  J.  Eq.  487; 
Mohawk  Bridge  Co.  v.  Utica  &  Sche- 
nectady R.  Co.,  6  Paige  Ch.  554; 
Att.-Gen.  v.  Manchester  [1893],  2 
Ch.  87;  Windfall  Mfg.  Co.  v.  Patter- 
son, 148  Ind.  414;  Lake  Erie  & 
Western  R.  Co.  v.  City  of  Fremont, 
34  C.  C.  A.  625. 

8  Sayre  v.  Newark,  58  N.  J.  Eq. 
136;  Lowe  v.  Prospect  Hill  Cemetery 
Association,  58  Neb.  94;  Payne  v. 
Wayland,  131  la.  659. 


()3()  INJUNCTIONS.  [part  III. 

continued,  will  ultimately  become  a  nuisance,  the  mere  fact  that 
the  annoyance  is  scarcely  at  present  appreciable  will  not  pre- 
vent the  court  from  interfering.  Thus,  where  the  pollution  of  a 
stream  is  very  slight  and  only  at  times  perceptil:)le,  but  it  is 
shown  that  the  pollution  is  increasing,  and  will,  in  process  of 
time,  become  an  absolute  nuisance,  it  has  been  held  that  the  act 
which  produces  this  result  will  be  enjoined.^  A  bill  to  enjoin  a 
nuisance  is  usually  brought  by  the  occupier,  or  by  the  lessee  in 
possession;  but  the  owner  may  sue  on  the  ground  of  injury  to 
his  property,  either  alone  or  conjointly  with  the  occupier.' 

441.  Different  kinds  of  nuisance. 

The  different  kinds  of  nuisances  are  of  course  numerous  and 
varied ;  and  whether  or  not  a  court  of  equity  will  interfere  will 
depend  very  much  upon  the  circumstances  of  the  particular  case. 

It  is  a  nuisance,  as  has  been  already  stated,  to  obstruct  the 
light  and  air  to  which  the  owner  of  a  building  is  legally  entitled ;  ^ 
but  it  is  not  a  nuisance  simply  to  shut  out  a  pleasant  prospect, 
or  to  erect  disagreeable  objects  in  view,  or  to  open  windows 
whereby  a  man's  private  grounds  may  be  overlooked."* 

The  enjoyment  of  pure  and  wholesome  air  is  a  right  to  which 
the  occupiers  of  land  are  entitled  as  of  common  right;  and  any 
act  which  pollutes  and  corrupts  the  air  so  as  to  produce  a  real 
and  sensible  damage  constitutes  a  nuisance.^    It  would  be  im- 

1  Goldsmid  v.  Tunbridge  Wells  Im-  tions,  §  553;  and  see  HuUey  v.  Se- 
provement  Co.,  12  Jur.  (n.  s.)  308;  curity,  etc.,  Co.,  5  Del.  Ch.  578. 
McCallum  i'.  Germantown  Water  Co.,  •*  Aldred's  Case,  9  Coke,  58,  a; 
54  Pa.  52;  Rigney  v.  Tacoma  Water  Webb  v.  Bird,  10  C.  B.  (x.  s.)  276; 
Co.,  9  Wash.  576;  Barrett  v.  Mt.  Jones  v.  Tapling,  12  Id.  842,  per 
Greenwood  Cem.  Ass'n,  159  111.  385;  Blackburn,  J.;  Att.  Gen.  v.  Doughty, 
Story's  Eq.  §  929,  d.  2  Yes.  Sr.  453;  Vollmer's  Appeal,  61 

2  Kerr  on  Injunctions,  336.  Pa.  118.     See  Detroit  B.  B.  Club  v. 

3  Johnson  v.  Wyutt,  2  De  G.,  J.  &  Deppert,  61  Mich.  63.  Nor  is  pick- 
S.  18,  26;  Robson  v.  Whittingham,  eting,  where  no  force,  threats  or 
L.  R.  1  Ch.  442;  Staight  v.  Burn,  5  intimidations  are  used,  a  nuisance. 
Id.  163;  Aynsley  v.  Glover,  10  Id.  Karges  Furniture  Co.  v.  Amalga- 
283;  Sutcliff  v.   Isaacs,   1   Pars.   Eq.  mated  Union,   165  Ind.  421. 

494;   Biddle   v.    Ash,    2   Ashm.   211.  ^  Kaspar  r.  Dawson,  71  Conn.  405 

The  English   rule   upon   the  subject  (odors  caused  by  deposit  of  manure) ; 

of  ancient  lights  has  not  been  gen-  Kerr  on  Injunctions,  360;  American 

erally  followed  in  this  country.     King  Smelting  Co.  v.   Godfrej',    158  Fed. 

V.  Miller,  8  N.  J.  Eq.  559;  Cherry  i'.  Rep.   225,   the   facts  and   rulings  of 

Stein,    11   Md.    1;  Townsend  v.   Ep-  the    court    are    there    stated    thus: 

stein,  93  Id.  537;  High  on  Injunc-  "Complainants    to    the    number    of 


(  H.  II.] 


T.v.irxcrjoNS. 


637 


possible,  in  a  work  like  tlie  present,  to  give  a  eatalogue  of  all  the 
acts  which  have  been  h(>ld  to  be  nuisances  under  this  rule.  A 
few  of  them  are  given,  Ijy  way  of  illustration,  in  the  note.^ 


over  400,  owning  farms  in  the  same 
vicinity  aggregating  over  9,000  acres, 
on  Avhich  they  resided,  brought  suit 
to  enjoin  the  operation  of  smelters 
owned  by  different  corporations  as 
nuisances.  The  evidence  showed 
that  in  the  smelting  of  sulphide  ores 
sulphur  dioxide  and  also  arsenical 
fumes  were  discharged  into  the  air 
by  the  smelters,  and  that  those 
from  the  different  smelters  mingled 
and  settling  upon  the  lands  of  com- 
plainants destroyed  their  trees  and 
crops,  poisoned  their  stock,  and  en- 
dangered the  health  of  themselves 
and  families,  rendering  their  farms 
in  a  large  measure  valueless.  Held, 
that  equity  had  jurisdiction  on  the 
ground  of  irreparable  injury,  and 
also  on  the  ground  of  preventing  a 
multiplicity  of  actions  at  law  against 
the  several  defendants,  in  which  it 
would  be  difficult  or  impossible  to 
ascertain  the  damage  committed  by 
either  defendant  singly,  and  that  on 
such  evidence  complainants  were 
entitled  to  an  injunction,  regardless 
of  the  otherwise  lawful  character  of 
defendants'  business  or  the  amount 
of  their  investments." 

1  Brickburning,  Walter  v.  Selfe,  4 
De  G.  &  S.  325;  Campbell  v.  Seaman, 
63  N.  Y.  568  (though  see  Hucken- 
stine's  App.,  70  Pa.  102);  offensive 
smoke,  Crump  v.  Lambert,  L.  R.  3 
Eq.  400;  resulting  from  bm-ning  soft 
coal,  McCarty  v.  Gas  Co.,  189  N.  Y. 
40.  "The  storing  and  using  of  gas- 
oline in  large  quantities  in  a  frame 
building  used  as  an  automobile 
garage,  situated  in  a  thickly  l)uilt-up 
portion  of  a  large  city  where  there 
are  numerous  frame  buildings  and 
where  an  explosion  would  cause 
serious  injury  to  the  adjacent  prop- 


erty, and  would  be  a  serious  menace 
to  the  lives  of  those  in  that  vicinity, 
constitutes  a  nuisance  which  will  be 
enjoined,   so   far  as   to  restrain   the 
introduction    of    gasoline    into    the 
tanks  of  the  automobiles  while  inside 
the  building,  and  the  storing  of  au- 
tomobiles    with     gasoline     in     their 
tanks,"  O'Hara  v.  Nelson,  71   N.  J. 
Eq.   161;  offensive  gases,  Tipping  v. 
St.  Helen',    Smelt.  Co.,  L.  R.  1  Ch. 
66;  a  soap-boilery,  Regina  v.  Pierce, 
Show.  327;  a  public  urinal,  Sellors  v. 
Board  of  Health,    14  Q.   B.  928;  a 
slaughter-house,   Regina  v.  Cross,   2 
Car.  &  P.  484;  Bishop  v.  Banks,  33 
Conn.  118;  Woodyear  v.  Schaefer,  57 
Md.   1;  Pruner  v.  Pendleton,  75  Va. 
516;  Rhoades  v.  Cook,  122  la.  336; 
(see  Sellers  v.  Penna.  R.  Co.,   1   W. 
N.  C.  295) ;  a  powder  magazine,  Wier's 
App.,  74  Pa.  230;  a  creamery,  Price  v. 
Oakfield  Creamery  Co.,  87  Wis.  536; 
an  oil  and  gasoline  warehouse,  Gavi- 
gan  1'.  Refining  Co.,  186  Pa.  613;  a 
hog-sty,   Aldred's  Case,  9  Co.  Rep. 
58,  b;  interference  with  business  by 
patrolmen,  Vegelahn  v.  Guntner,  167 
Mass.  92;  maintenance  of  a  house  of 
ill-fame,  Blagen   v.  Smith,  34   Oreg. 
394;  Tedescki  v.  Berger,  150  Ala.  649; 
Weakley   v.    Page,    102   Tenn.    178; 
pollution  of  streams  and  wells,  Piatt 
r.  Waterbury,  72  Conn.  531 ;  Winchell 
V.  Circuit  Court,  116  Wis.  253;  West 
Arlington  Tmp.  Co.  7'.  Mount  Hope, 
97  Md.   1!)1;  maintenance  of  .saloon 
and    of   beer    garden    conducted    in 
such   a   way  as  to  be   a   nuisance, 
Kissel  V.  Lewis,  156  Ind.  233.     See 
K'hodes  v.  Dunbar,  57  Pa.  275  {per 
Read,  .L).    Oil  and  gas  wells  are  not 
nui.sances  per  se;  only  their  unlaw- 
ful operation  will  be  restrained,  Mc- 
Gregor V.  Camden,  47  W.  Va.  193. 


638 


INJUNCTIONS. 


[part  111. 


Noisy  manufactories  may  be  nuisances,  especially  when  ac- 
companied by  a  vibration;^  and  mere  noise,  from  whatever 
cause,  will,  on  a  proper  case  being  made  out,  be  a  sufficient 
ground  for  an  injunction.' 

But  the  jurisdiction  in  all  these  cases  should  be  exercised  with 
great  caution.    Lord  Chancellor  Selborne,  in  Gaunt  v.  Fynney.^ 


The  wasting  of  natural  gas  was  en- 
joined as  a  nuisance  in  State  v.  Ohio 
Oil  Co.,  150  Ind.  21.  Except  for 
the  benefit  and  improvement  of  his 
own  premises  or  for  his  own  bene- 
ficial use  the  owner  of  land  has  no 
right  to  drain,  collect,  or  divert 
percolating  waiers  thereon  when  such 
act  will  destroy  or  materially  in- 
jure the  spring  of  another  person, 
the  waters  of  which  spring  are  used 
by  the  general  public  for  domestic 
pin-poses.  He  must  not  drain,  collect 
or  divert  such  waters  for  the  sole 
purpose  of  wasting  them.  Such 
waste  may  be  restrained  by  injunc- 
tion. Stillwater  Water  Co.  v.  Farmer, 
S9  Minn.  58  (a  rather  advanced  case, 
so  considered  by  the  judge  who  wrote 
the  opinion).  See,  also,  Pence  v. 
Ciu-ney,  58  W.  Va.  296;  a  hospital, 
D(>aconess  Hospital  v.  Bontjes,  207 
111.  55)i;  illegal  sale  of  intoxicating 
licjuors,  Walker  v.  McNelly,  121  Ga. 
1 1 1;  a  fair  occupying  75  feet  in  width 
and  four  blocks  in  length  of  an  im- 
portant business  street  of  a  city, 
City  Council  v.  Reynolds,  122  Ga. 
754;  an  ice  chute  so  constructed 
across  a  street  as  to  obstruct  travel. 
Young  V.  Rothrock,  121  la.  588;  to 
prevent  the  use  of  a  theatre  for  a 
prize  fight,  but  not  to  enjoin  the 
principals  as  the  criminal  law  is 
adequate,  Commonwealth  v.  Mc- 
Govern,  IIG  Ky.  212;  the  main- 
tenance and  operation  of  an  electric 
fan  forcing  impure  and  offensively 
smelling  air  into  a  building  is  a  nui- 
sance the  maintenance  of  which 
would  be  enjoined,  Vaughan  i'. 
Bridgham,  193  Mass.  392;    a  public 


bull  fight.  State  v.  Canty,  207  Mo. 
439;  dogs  apt  to  kill  sleep  and  dis- 
turb the  reasonable  enjoyment  of  a 
house  by  howling  and  barking,  and 
the  rest  and  sleep  of  a  neighbor  and 
his  family  is  a  nuisance  restrainable 
by  injunction.  Herring  v.  Wilton,  106 
Va.  171. 

1  Demarest  v.  Hardham,  34  N.  .T. 
Eq.  469;  Hoadley  v.  Seward,  71 
Conn.  640. 

2  White  V.  Cohen,  1  Drew.  313; 
Soltau  V.  De  Held,  2  Sim.  (n.  s.)  133; 
Crump  V.  Lambert,  L.  R.  3  Eq.  409; 
Harrison  v.  St.  Mark's  Church,  3  W. 
N.  C.  389;  affirmed  on  appeal,  34 
Leg.  Int.  222;  Cluney  v.  Lee  Wai, 
10  Haw.  319;  Butterfield  v.  Klaber, 
Id.  87;  Leete  v.  Pilgrim  Cong.  Soc, 
14  Mo.  App.  590;  Bradley  v.  Gill, 
Lutwyche,  29;  Inchbald  v.  Barring- 
ton,  L.  R.  4  Ch.  App.  388;  Ball  r. 
Ray,  8  Id.  467;  Broder  v.  Saillard, 
2  Ch.  D.  692;  Bishop  r.  Banks,  33 
Conn.  118;  Roskell  v.  Wliitworth,  19 
Week.  Rep.  804;  Scott  v.  Firth,  10 
Law  Times  (n.  s.),  240;  Christie  v. 
Davey  [1893],  1  Ch.  316;  Lambton 
V.  Mellish  [1894],  3  Ch.  163;  Fish  v. 
Dodge,  4  Denio,  311;  Dermis  v. 
Eckhardt,  3  Grant's  Cas.  390;  Whit- 
aker  v.  Hudson,  65  Ga.  43;  Davis 
V.  Sawyer,  133  Mass.  289;  22  Am. 
Law  Reg.  636;  Wood  on  Nuisances, 
Chap.  XVI. 

3L.  R.  8  Ch.  11.  See,  also,  the 
remarks  of  Lord  Westbury  in  Tipping 
r.  St.  Helen's  Smelt.  Co.,  11  H.  L. 
Cas.  649;  Huckenstine's  App.,  70 
Pa.  107;  Sparhawk  v.  Union  Pass. 
R.  Co.,  54  Id.  401;  Browne  v.  Niles, 
165  Mass.  276. 


CH.  II.]  INJUNCTIONS.  639 

quoted  with  approval  the  old  Scotch  maxim  which  forbids  a 
man  to  use  his  own  rights  "in  emulationem  vicini;"  and  said  that 
neighbors  everywhere  (and  certainly  in  manufacturing  towns) 
ought  not  to  be  extreme  or  unreasonable  either  in  the  exercise  of 
their  own  rights  or  in  the  restriction  of  the  rights  of  each  other. 
Nevertheless,  while  regard  should  be  had  to  this  doctrine,  yet, 
on  the  other  hand,  due  weight  should  be  given  to  the  right  of 
every  man  to  the  comfortable  enjoyment  of  his  dwelling  in  ac- 
cordance with  the  rule  laid  down  in  Broder  v.  Saillard  and  Flem- 
ing V.  Hislop,  already  referred  to.^  A  dangerous  business  may  be 
a  nuisance ;  ^  but  this  may  depend  upon  whether  the  locality  is 
populous  or  otherwise.^ 

442.  Coming  to  a  nuisance. 

It  was  formerly  thought  that  if  a  man  erected  a  dwelling- 
house  in  the  immediate  neighborhood  of  a  factory  where  an 
offensive,  or  noisy,  or  dangerous  trade  was  carried  on,  he  was 
not  entitled  to  his  injunction  because  it  was  his  own  fault  to 
move  into  the  proximity  of  the  objectionable  trade.^  But  this 
doctrine  of  "coming  to  nuisance"  (as  it  was  termed)  is  now  ex- 
ploded, and  the  most  recent  authorities  hold  that  the  injunction 
will  not  be  refused  on  that  ground.^ 

443.  Lateral  support  to  soil ;  Purprestures  ;  Public  Com- 
panies. 

Acts  whereby  the  right  of  vertical  and  lateral  support  to  one's 

land,  by  the  subjacent  and  adjacent  soil,  is  interfered  with;^ 

whereby  rights  in   the   enjoyment   of  water  are  affected ;  or 

whereby  rights  of  way  are  impeded,  are  all  nuisances,  and  will  be 

enjoined  on  a  proper  case  being  made  out.'^ 

1  Cited,  ante,  pp.  632  and  633.  See,  also,  Cleveland  v.  Citizens'  Gas 
Maintenance  of  baseball  grounds  may  Light  Co.,  20  N.  J.  Eq.  201;  Camp- 
be  a  nuisance  if  conducted  in  dis-  bell  v.  Seaman,  63  N.  Y.  568,  and 
orderly  manner.  Cronin  v.  Bloem-  Cluney  v.  Lee  Wai,  10  Haw.  319; 
ccke,  58  N.  J.  Eq.  313.  Oehler  v.  Levy,  234  111.  60-1;  but  see 

2Crowder  v.  Tinkler,  19  Ves.  617;  Austin  v.  Converse,  219  Pa.  3. 

Hepburn    v.   Lordan,   2  Hem.   &   M.  «  Rahn  v.  Milwaukee  Electric  Ry. 

345;  Wier's  Appeal,  74  Pa.  230.  &  L.  Co.,  103  Wis.  467;  The  Trinidad 

3  Dilworth's  Appeal,  91  Pa.  247.  Asphalt  Co.  v.  Ambard  [1899],  A.  C. 

^  See  2  Black.  Com.  402;  Keii-  on  594,  but  see  (as  to  mines)  Berkley  v. 

Injunction.s,  363.  Coal  Co.,  220  Pa.  65,  where  an  in- 

■>  Elliot.son  r.  Feetham,  2  Bing.  (n.  junction  was  refused  on  the  ground 

s.)  134,  Tipping  v.  St.  Helen's  Smelt.  of  adequate  remedy  at  law. 

Co.,  L.  R.  1  Ch.  66;  11  H.  L.  Cas.  649.  ^  Kerr  on  Injunctions,  366  et  seq.; 


G40 


INJUNCTIONS. 


[part  111, 


Equity  entertains  jurisdiction  by  injunction  in  cases  of  pur- 
presture.  A  purpresture  originally  signified  a  close  or  enclosure; 
that  is,  where  one  encroaches,  or  makes  that  several  to  himself 
which  ought  to  be  common  to  many.^  In  its  common  accept- 
ance it  aften\'ai'd  came  to  mean  an  encroachment  upon  the  king, 
either  upon  part  of  his  demensc  lands,  or  upon  rights  and  ease- 
ments held  by  him  for  the  public,  such  as  upon  highways,  public 
rivers,  forts,  streets,  squares,  bridges,  quays,  and  other  pubHc 
accommodations;  and  the  tendency  now  is,  perhaps,  to  restrict 
its  signification  to  an  invasion  or  an  encroachment  on  the  soil  of 
the  seashore,  or  bed  of  an  estuary  or  navigable  tidal  river  be- 
tween high-  and  low-water  mark  while  the  same  remains  in  the 
Crown.  To  constitute  a  public  nuisance  it  should  be  shown  that 
the  purpresture  is  productive  of  damage  to  some  public  right. 
If  the  act  complained  of  be  a  mere  purpresture  without  being  at 
the  same  time  a  nuisance,  the  court  will  usually  direct  an  inquiry 
to  be  made  whether  it  is  more  beneficial  to  the  Crown  to  abate 
the  purpresture,  or  to  suffer  the  erection  to  remain  and  be 
arrested.  But  if  the  purpresture  be  also  a  public  nuisance,  this 
cannot  be  done,  for  the  Crown  cannot  sanction  a  public  nuisance.^ 

A  bill  in  equity  to  abate  a  pubhc  nuisance  filed  by  one  who 
has  sustained  special  damage,  has  succeeded  to  the  former  mode 
in  England  of  an  information  in  chancery,  prosecuted  on  behalf 
of  the  Crown  to  abate  or  enjoin  the  nuisance,  as  a  preventive 
remedy;  and  the  jiu'isdietion  of  Courts  of  Chancery  in  such  cases 
is  well  established  in  this  country.^  Unless  the  party  who  files 
the  bill  can  show  that  he  has  sustained,  and  is  still  sustaining, 
individual  damage,  his  bill  cannot  be  maintained.'*  If  the  in- 
jury suffered  is  one  which  has  been  sustained  in  conmion  with 
other  citizens,  and  the  damage  is  not  special  or  peculiar,  the 
injunction  will  be  dissolved.^    If  the  injury  can  be  compensated 


High  on  Injunctions,  27!)  et  acq.  Ami 
sec  .Jordeaon  v.  Sutton,  etc.,  Gas  Co. 
[1S!I!»1,  2  Cli.  217. 

iCo.  Litt.  2d  Tn.stitute,  38,  272; 
Story'ri  Eq.  Jurisp.  §  921. 

2  Kerr  on  Injunctions,  39.5,  396. 
See  Revell  r-.  Tho  People,  177  111. 
480,  for  a  discussior  of  this  subject. 

s  State  of  Pennsylv.ania  ?•.  Wheel- 
inj;;  Bridge  Co.,  13  How.  564.  See 
City  of  Chicago  v.  Stock  Yards  Co., 


164   111.   228;  Cicero  Lumber  Co.  v. 
Town  of  Cicero,  176  111.  10. 

4  Miss.  «fe  Mo.  Co.  V.  Ward,  2  Blaok 
(U.  S.),  492;  Hinchman  v.  Paterson 
Horse  R.  Co.,  17  N.  J.  Eq.  75;  .\tt.- 
Gen.  V.  Utica  Ins.  Co.,  2  Johns.  Ch. 
379;  Ileer,  etc.,  Co.  v.  Railway  Co.,  41 
Mo.  App.  6:>;  Cummings  Co.  v.  Deere, 
208  Mo.  (;6. 

5  Allen  r.  Board  of  Freeholders,  13 
N.  J.  Eq.  68.    See,  upon  the  general 


CH.  II.] 


INJUN'CTiONS. 


641 


ill  dumages,  the  individual  will  bo  relegated  to  his  remedy  at 
law.' 

Companies  having  the  power  to  take  land  and  construct  public 
works  are  not  amenable  to  the  jurisdiction  of  a  court  of  equity 
if  they  keep  within  the  line  of  their  powers,  and  proceed  under 
their  authority  with  due  skill  and  care.  But  if  they  exceed  their 
authority,  or  if  they  construct  their  works  in  such  a  negligent 
and  unskilful  manner  as  to  cause  injury  to  others  the  court  will 
interfere.^ 

Where  public  rights  under  the  laws  of  the  United  States  are 
infringed,  the  circumstance  that  the  act  was  done  by  virtue  of 
authority  from  a  state  legislature  is  no  justification.^ 

444.  Iiijunctiou  in  cases  of  Patent  Right,  Copyright, 
Literary  Property  and  Trade-marks. 

The  jurisdiction  of  equity  upon  the  "subjects  of  patent  right, 
copyright,  hteraiy  property,  and  trade-marks,  depends  upon 
the  fact  that  the  remed}'^  at  conmion  law  is  entirely  inadequate. 
Thus,  an  infringement  of  a  patent  cannot  be  redressed  by  dam- 
ages at  law  for  two  reasons:  in  the  first  place,  it  may  be  very 
difficult,  if  not  altogether  impossible,  to  ascertain  the  exact 
amount  of  injury  which  the  unlawful  use  or  manufacture  of  the 
patented  article  may  have  occasioned :  and  in  the  second  place, 
every  fi-esh  violation  of  the  plaintiff's  right  would  call  for  a  new 
action,  and  thus  the  injured  party  would  be  involved  in  con- 
stantly renewed  and,  perhaps,  interminable  litigation.  For 
these  reasons  the  ecjuitable  remedy  by  injunction  has  been  em- 
ployed, in  order  that  the  right  of  the  plaintiff,  if  it  really  exists, 


fiiibject,  Bigelow  r.  Hartford  Bridge 
Co.,  14  Conn.  565;  Corning  v.  Lowerre, 
6  Johns.  Ch.  439;  Hartshorn  v.  South 
Reading,  ;]  Allen,  501;  Del.  &  Md.  R. 
Co.  V.  Stump,  8  C.ill  &  ,1.  47!»;  Buck 
Mt.  Co.  V.  Lehigh  Co.,  5U  I'a.  91; 
Bunnell's  App.,  69  Id.  59;  Saylor  r. 
Penn.  Can.  Co.,  183  Id.  172;  City  of 
Columbus  (,'.  Jaques,  30  Ca.  506; 
Lukers  v.  Sturtevant,  10  Oreg.  170; 
Manufacturers'  Gas  Co.  v.  Indiana 
Nat.  das  Co.,  155  Ind.  566;  Anthony 
Shoe  Co.  <'.  West  .Jersey  R.  R.  Co., 
57  N.  J.  Eq.  607;  Jones  v.  Chanute, 
63  K;jn.  213;  High  on  Injunctions, 

41 


§§  822  et  seq.  See,  also,  Holm  v. 
Windsor,  38  111.  App.  650;  Hamilton 
r.  Semet  Solvay  Co.,  227  111.  501; 
(ieorge  v.  Peckham,  73  Neb.  794. 

1  Osborne  i\  Mis8ouii  Pacific  Ry., 
147  U.  S.  253;  Doane  r.  Lake  St.  R. 
R.  Co.,  165  111.  518;  Chicago  Gen.  Ry. 
Co.  V.  Chicago,  Burl.  &  Quincy  R.  R. 
Co.,  181  111.  605. 

2  Kerr  on  Injunctions,  342;  post, 
Injunctions  in  cases  of  Corpora- 
tions. 

■'  State  of  Pennsylvania  v.  Wheel- 
ing Bridge  Co.,  13  How.  518. 


042  INJUNCTIONS.  [part  III. 

may  be  settled  at  once  and  forever,  and  the  wrongful  acts  of  the 
defendant  may  be  permanently  stopped. 

The  equitable  remedy  possesses  an  advantage  over  the 
common-law  action  in  obtaining  three  results  which  cannot  be 
reached  by  a  suit  for  damages,  viz.,  (1)  Inspection;  (2)  Injunc- 
tion; and  (3)  Account. 

445.  Inspection. 

The  first  of  these  advantages  is  most  frequently  shown  in  cases 
of  bills  to  restrain  violations  of  patent-rights.  It  sometimes 
happens  that  a  patentee  is  unable  to  ascertain  how,  or  in  what 
particulars,  the  machinery  used  by  his  rival  is  a  violation  of  his 
right.  In  such  cases  a  court  of  equity  will,  upon  a  fair  prima 
facie  case  being  made  out,  order  the  defendant  to  permit  an  in- 
spection to  be  made  of  his  premises  and  machinery  by  proper 
persons  named  on  behalf  of  the  plaintiff.^ 

446.  Injunction. 

In  the  second  place,  the  equitable  remedy  by  special  mjunc- 
tion  is  efficacious  in  restraining  at  once  the  violation  of  the  com- 
plainant's rights,  if  a  proper  case  for  such  relief  is  made  out  on 
preliminary  application ;  while,  after  the  right  of  the  complainant 
and  the  fact  of  infringement  have  been  duly  established,  the  per- 
petual injunction  forever  prevents  infringements  in  the  future. 

447.  Account. 

Thirdly,  for  the  purpose  of  affording  complete  reUef  equity 
will  order  an  account  by  the  defendant  of  all  the  profits  which 
he  has  made,  and  will  compel  him  to  make  discovery  for  the 
])urpose  of  ascertaining  such  profits.  In  taking  the  account  the 
court  is  ordinarily  confined  to  the  profits  actually  made.  Thus, 
the  court  cannot  estimate  how  many  copies  of  an  expensive 
book  have  been  excluded  from  the  market  by  the  unauthorized 
pubhcation  of  a  cheaper  copy.'  In  cases  of  patents,  however, 
the  courts  of  equity  in  England  are  authorized  by  statute  to  in- 
quire into  the  question  of  damages  in  addition  to,  or  in  substitu- 
tion for,  an  account.^  And  in  cases  of  infringement  of  rights 
of  literary  property^e.  g.,  a  dramatic  composition — an  inquiry 
has  been  directed  to  ascertain  how  nmch  a  license  to  represent 
the  play  would  have  been  worth. ^ 

1  Kerr  on  Injunctions,  433.  3  Stat.  21  and  22  Vict.,  c.  27. 

2  Colburn  r.  Simms,  2  Hare,  543;  *  Keene  v.  Wheatley,  9  Am.  Law 
Kerr  on  Injunctions,  472.                          Reg.  92. 


CH.  II.]  INJUNCTIONS.  643 

In  coming  to  obtain  reliof  in  equity  the  complainant  must 
exercise  due  diligence.  If  he  has  been  guilty  of  great  delay, 
or  of  acquiescence  in  the  infringement  of  his  rights,  rehef  will  be 
refused. 

448.  Patent  right. 

Having  noticed  the  general  principles  applicable  to  the  cases 
now  under  consideration,  it  will  be  convenient  to  say  a  few 
words  about  each  of  these  cases  in  detail. 

And,  first,  as  to  patent  rights.  A  patent  is  a  grant,  by  gov- 
errinent,  to  the  author  of  a  new  and  useful  invention  of  the 
exclusive  right  for  a  term  of  years  of  practising  that  invention. 
The  right  is  dependent  upon  statute ;  ^  and,  in  the  United  States, 
rests  upon  acts  of  Congress,  the  subject  being  one  which,  under 
the  Constitution,  falls  within  the  sphere  of  Federal  jurisdiction. 
The  right  to  interfere  by  injunction,  therefore,  in  this  class  of 
cases  is  exercised  only  by  the  courts  of  the  United  States,  the 
state  courts  having  no  jurisdiction. - 

What  constitutes  the  proper  subject-matter  of  a  patent;  what 
parties  are  entitled  to  it;  what  steps  are  necessary  to  obtain 
it ;  and  what  acts  would  amount  to  an  infringement  thereof,  are, 
of  course,  questions  which  do  not  fall  within  the  scope  of  this 
work.  They  will  be  found  learnedly  discussed  in  separate  trea- 
tises.^ It  will  be  sufficient,  in  addition  to  the  general  principles 
already  stated,  to  notice  a  few  rules  by  which  the  application  of 
the  equitable  remedy  of  injunction  to  this  subject  is  regulated. 

449.  Previous  trial  at  law  to  establish  right  uiiuccessary. 

In  England  it  had  once  been  the  o[)inion  that  a  court  of  equity 
would  not  interfere  to  protect  a  patent  right  by  injunction,  until 
the  right  had  been  established  at  law;"*  but  this  doctrine  was 
denied  by  Lord  Eldon,  and  it  is  now  settled  that  the  court  will 
interfere  in  all  cases  where  there  is  a  clear  color  of  title,  and  as- 
sertion of  right  has  not  been  disputed.'"'  The  Federal  courts  have 
followed  the  doctrine  of  Loixl  Eldon,  and  have  been  disposed  to 

'  Ik'lknap  v.  Schikl,  161  U.  S.  15.  dentally  in  question.    See  Slemmer's 

-  Parkhurst  v.   Kinsman,   6   N.   J.  Appeal,  58  Pa.   155;  Curtis  on  Pat- 

Eq.  GOO;  High  on  Injunctions,  §  602.  cnts,  496. 

Stati>  courts,  lunvovcr,  can  enforce  n  ■'  See  Curtis  on  Patents. 

contract  or  a  trust  of  wliieh  a  patent  '  .Millar  ?;.  Taylor,  4  Burr.  2303. 

is  the  subject,  even  though  tlie  \ali(l-  ■''  Universities  of  Oxford  and  Cani- 

ity   of   the   patent  may   come   inci-  bridge  v.  Richardson,  6  Ves.  689. 


041 


INJUNCTIONS. 


[part  III. 


1 


extend  its  application  with  considerable  liberality;  so  that  it  is 
now  by  no  means  necessary,  as  a  general  rule,  that  there  should 
be  a  trial  at  law  whereby  the  validity  of  the  complainant's  title 
may  be  established  before  an  injunction  goes  out,  even  (it  would 
seem)  in  the  case  of  a  final  injunction.^  The  question,  however, 
nuist  be  one  as  to  the  decision  of  which  the  court  is  to  exercise  a 
sound  discretion,^  and  it  has  been  said  that  this  discretion  should 
be  exercised  only  "when  the  complainant's  title  and  the  defend- 
ant's infringement  are  admitted,  or  are  so  clear  and  palpable  that 
the  court  can  entertain  no  doubt  upon  the  subject."  ^  If  the 
patent  be  an  old  one,  that  is  a  sti'ong  circumstance  in  favor  of 
letting  the  injunction  go  out.  If  it  be  but  of  yesterday,  the 
remedy  is  to  be  applied  with  more  caution,  and  stronger  prima 
facie  proof  of  title  and  infringement  will  be  required.  Many  other 
circumstances  may  exist  whereon  the  propriety  of  issuing  the  in- 
junction may  depend.  Thus,  the  defendant's  bona  fides  in  acting 
under  letters  jjatent  of  his  own ;  the  hardship  of  the  particular 
case;  the  defendant's  solvency;  and  the  diligence  of  the  com- 
plainant should  all  be  considered.'* 

In  this  country,  contrary  to  the  English  rule,  an  account  may 
be  granted  although  the  injunction  is  refused."^  Thus,  if  the 
patent  has  expired  between  the  time  of  filing  the  bill  and  the 
hearing,  an  account  may  be  directed,  though  no  injunction  will 
be  allowed  against  the  future  use  of  the  article.*^ 

450.  Copyright. 

Copyright,  according  to  the  legal  acceptation  of  the  term,  is 
the  exclusive  right  or  monopoly  of  multiplying  a  work  of  litera- 
ture or  art  after  it  has  been  published ;  the  right,  in  other  words, 
of  preventing  all  others  from  copying,  by  printing  or  otherwise, 
a  work  of  literature  or  art  which  the  author  has  published.^ 


'  Sickles  V.  Gloucester  Manufactur- 
ing Co.,  1  Fish.  Pat.  Cas.  222;  San- 
ders r.  Logan,  2  Id.  1G7;  Potter  v. 
Muller,  Id.  465;  Shelly  r.  Brannan, 
4  Id.  198. 

-  Brooks  V.  Norcross,  2  Fish.  Pat. 
Cas.  661;  Potter  v.  Fuller,  Id.  251; 
Motte  V.  Bennett,  Id.  642.  See  this 
last  case,  also,  for  a  discussion  of  the 
general  siibject  of  equity  jurisdiction 
in  cases  of  patents.  See  High  on  In- 
junctions, §  604. 


3  Bailey  Wringing  Machine  Co.  v. 
Adams,  5  Reporter,  102;  Parker  v. 
Sears,.  1  Fish.  Pat.  Cas.  96. 

■*  High  on  Injunctions,  §§  eiGeise^. 

5  Sickles  V.  Gloucester  Mfg.  Co.,  1 
Fish.  Pat.  Cas.  222;  Imlay  v.  Nor- 
wich,  etc.,   R.   Co.,   4    Blatch.    227. 

6  Imlay  v.  Norwich,  ut  sup.;  High 
on  Injunctions,  §  628. 

'  See  Kerr  on  Injunctions,  445; 
Stephens  v.  Cady,  14  How,  530; 
Hilliard  on  Injunctions,  525  et  seq. 


CH.  II.]  INJUNCTIONS.  645 

The  question  whether  there  was  or  was  not  a  copyright  at 
common  law  after  publication,  was  for  a  long  time  involved  in 
doubt.'  The  prevailing  opinion  at  first  was  that  such  a  right 
did  exist,  and  this  right  was  recognized  in  many  decisions,  and 
by  many  judges,  among  them  by  no  less  eminent  jurists  than 
Lords  Mansfield  and  Hardwicke,  the  latter  of  whom,  in  1739, 
I'estrained  by  injunction  the  pubhcation  of  ^lilton's  Paradise 
Lost,  although  the  title  of  the  plaintiff  was  derived  from  an  as- 
signment by  the  author  made  in  1667.  But  this  did  not  long 
continue  to  be  the  law.  The  House  of  Lords,  in  Donaldson  v. 
Beckett,  in  1774,  distinctly  overruled  the  previous  decisions, 
and  it  must  now  be  considered  settled  that  there  is  no  copyright 
at  common  law  after  publication.' 

461.  Copyright ;  in  the  United  States. 

Copyright  in  this  country  depends  upon  the  Acts  of  Congress; 
and  the  remedies  for  its  infringement  are  exclusively  within 
the  United  States  courts. •"*  Li  order  to  invoke  the  equitable 
remedy  by  injunction,  it  is  not,  as  a  general  rule,  necessary  in 
this  country  to  establish  the  right  at  law  in  the  first  instance. 
The  title  of  the  complainant,  and  the  fact  of  the  infringement, 
may  be  established  in  the  suit  for  an  injunction.  The  subject, 
however,  is  one  for  the  discretion  of  the  court,  and  a  trial  at  law 
may  be  required  as  a  prerequisite  to  the  injunction,  if  the  court 
should  think  proper. 

In  this  country  the  subjects  of  copyright  are  enumerated  by 
§  86  of  the  Act  of  Congress  of  1870  (and  its  amendment  of 
1891),^  which  was  passed  for  the  purpose  of  amending,  revising, 
and  consolidating  the  statutes  upon  the  suV)ject.  By  that  section 
the  benefit  of  the  Act  is  extended  to  "any  book,  map,  chart, 
dramatic  or  musical  composition,  engraving,  cut,  print,  or  photo- 
graph, or  negative  thei-eof,  or  any  painting,  drawing,  chromo, 
statue,  statuary,  models  or  designs  intended  to  be  perfected  as 
works  of  the  fine  arts;  "  and  authors  are  empowered  to  reserve 
the  right  to  dramatize  or  translate  their  own  works. 

453.  Piracy,  what  it  is. 

Piracy  of  a  copyright  is  the  unauthorized  substantial  appro- 

1  Shortt  on  the  Law  of  Literature  »  Dudley  v.  Mayhew,  3  Comst.  9; 
and  Art,  61  et  seq.  High  on  Injunctions,  §  641. 

2  4  Burr.  2408,  note;  2  Bro.  P.  V.  *  See  26  U.  S.  Stat,  at  Large,  1108. 
129. 


040 


INJUNCTIONS. 


[part  III. 


priation  of  the  laboi's  of  the  original  author.^  Bona  fide  extracts, 
and  quotations  from  a  book  are  not  infringements  of  a  copyright, 
nor  is  a  bona  fide  abridgment.  It  is  scarcely  possible,  however, 
to  lay  down  any  general  rule  upon  this  subject,  as  the  fjuestion 
is  one  of  degree  rather  than  of  kind,  and  the  decision  must,  in 
most  instances,  depend  upon  the  particular  circumstances  of  th ) 
case  under  consitleration.  A  few  of  the  leading  authorities  ui)on 
this  subject  will  be  found  in  the  note.^ 

It  is  no  objection  to  an  injunction  that  it  will  stop  the  sale  of 
the  work  by  which  tlie  copyr'ight  is  infringed.  If  a  man  chooses 
to  make  an  unlawful  appropriation  of  another's  work  to  such  an 
extent  that  the  original  jjortions  of  his  own  l^ook  cannot  be 
separated  fi'oni  the  i)arts  which  have  been  improperly  appro- 
priated, he  must  pay  the  [)enalty  for  so  doing.^ 

To  constitute  a  ])iracy  there  must  be  a  multiplication  of  copies 
of  the  original  work.  Any  other  use  of  it,  such  as  for  the  purpose 
of  pu])lic  reading  or  recitations,  will  not  be  a  piracy;'*  but  any 
multiplication  of  copies,  even  though  such  new  copies  are  not 
designed  for  sale,  \\\[\  l^e  an  infringement.'^ 

453.  Other  retniisites  to  an  injunction. 

There  can  be  no  copyright  of  works  which  are  manifestly 
irreligious,  immoral,  and  obscene;  and  a  court  of  equity  will  not 
intei-fere  by  injunction  to  protect  such  works.  This  rule,  how- 
ever, is  one  which  requires  to  be  applied  with  extreme  caution 
and  delicacy;  for  it  is  not  unfrecjuently  the  case  that  what  to 
one  man  would  appear  to  be  highly  irreligious,  would  to  another 
seem  but  a  fair  and  candid  investigation  or  criticism.^ 

It  may  be  added  that  the  jurisdiction  of  equity  is  exercised 
solely  on  the  ground  of  protection  to  property;  and  that  there 
is  no  jurisdiction  to  restrain  the  publication  of  improper  or 
libellous  works  merely  on  account  of  their  mischievous  char- 
acter.   Moreover,  for  a  libel  there  is  a  complete  remedy  at  law." 


'  Shortt  on  the  Law  of  Literature 
and  Art,  248. 

2  Folsom  V.  Marsh,  2  Story,  100; 
Gray  v.  Russell,  1  Id.  11;  Blunt  v. 
Patten,  2  Paine,  397;  Story's  Ex'rs  v. 
Holcombe,  4  McLean,  .306;  Warne  & 
Co.  V.  Seebohm,  .39  Ch.  D.  73;  Stowe 
V.  Thomas,  2  Am.  Law  Reg.  210. 

3  Jarrold  c.  Houlston,  3  K.  &  ,J. 
708;  Emerson  v.  Davies,  3  Story,  768. 


4  Reade  v.  Conquest,  9  C.  B.  (n.  s.) 
755;  Tinsley  v.  Lacy,  1  Hem.  &  M. 
747. 

5  Novello  V.  Sudlow,  12  C.  B.  177. 
•5  High     on     Injunctions,      §642; 

Story's  Eq.  Jurisp.  §  9.36. 

7  Brandreth  v.  Lance,  8  Paige  Ch. 
24;  Marlin  Fire  Arms  Co.  v.  Shields, 
171  N.  Y.  384;  Dailey  v.  Superior 
Court,  112  Cal.  94.    See  fost,  note  at 


CH.  II.] 


INJUNCTIONS. 


647 


454.  Literary  property  ;  Prince  Albert  v.  Strange. 

While  it  is  true  (as  it  has  been  ah'eady  stated),  that  after 
publication  there  can  be  no  property  in  a  literary  production, 
yet  before  publication  the  rule  is  different,  and  the  right  to  such 
property  is  exclusively  in  the  producer,  and  any  infringement  of 
that  right  will  be  restrained  by  an  injunction.  It  has  been 
cjuaintly  observed  that  the  ideas  of  an  author  are  like  "  birds  in  a 
cage,  which  none  but  he  can  have  a  right  to  let  fly,  for  till  he 
thinks  proper  to  emancipate  them  they  are  under  his  own  do- 
minion." ^ 

The  leading  case  on  this  subject  is  that  of  Prince  Albert  v. 
Strange,-  where  Queen  Victoria  and  her  husband,  for  their  own 
amusement,  had  made  some  etchings,  and  afteiwards  had  litho- 
graphic im])ressions  thereof  struck  off"  by  means  of  a  private 
press.  Some  copies  having  surreptitiously  come  into  the  hands 
of  a  workman,  they  were  finally  sold  to  Strange,  a  publisher, 
who  appeared  to  have  been  a  bona  fide  ])urchaser.  He  prepared 
and  printed  a  descriptive  catalogue  in  which  he  announced  the 
forthcoming  publication  of  copies  of  the  etchings.  Upon  a  bill 
filed,  not  only  was  the  publication  of  the  etchings  enjoined,  but 
the  catalogue  also  was  declared  to  be  a  violation  of  the  private 
right  of  property  in  the  etchings. 

This  case,  while  it  is  a  striking  one,  is  by  no  means,  however, 
the  earliest  decision  upon  the  subject,  as  the  right  of  property 
in  unpuVjlished  literary  productions  and  the  consequent  right 
to  the  protection  of  a  court  of  et|uity,  had  been  recognized  long 
locfore.''* 

The  principle  has  been,  of  late,  applied  for  the  purpose  of 
enjoining  the  publication  of  information  as  to  the  price  of  stocks, 
when  such  information  has  been  impro]:)erly  obtained  from  tapes 
and  letter-press  sheets  which  were  in  the  plaintiff's  office."* 


end  of  this  chapter.  Where  the  Ubel 
consists  in  the  pubhcation  of  some- 
thing that  is  likely  to  injure  the  mer- 
cantile credit  of  the  complainant,  an 
injunction  will  issue.  Dixon  v.  Hol- 
den,  L.  R.  7  Eq.  488. 

1  Millar  v.  Taylor,  4  Burr.  237S; 
Shortt  on  the  Law  of  Literary  Prop- 
erty, 49;  Hilliard  on  Injunctions, 
434. 

2  1MacN.«feG.42. 


3  In  1732.  See  Shortt  on  the  Law 
of  Literary  Property,  54. 

4  Exchange  Tel.  Co.  v.  Gregory 
[18i)()J,  1  Q.  B.  147;  Nat.  Tel.  New's 
Co.  V.  West.  Union  Tel.  Co.,  56  C.  C. 
A.  198;  Illinois  Com.  Co.  v.  Cleveland 
Tel.  Co.,  Id.  205;  Dodge  Co.  v.  Con- 
struction Information  Co.,  183  Mass. 
62 ;  Chamber  of  Commerce  v.  Wells, 
100  Minn.  205;  Board  of  Trade  v. 
Christie  Grain  Co.,  198  U.  S.  236. 


648 


INJUNCTIONS. 


[part  hi. 


465.  Questions  as  to  publication. 

The  questions  which  have  most  frequently  arisen  upon  this 
subject  are  as  to  pubhcation.  If  there  has  been  a  pubhcation, 
the  right  is,  of  course,  gone.  But  whether  there  has  or  has  not 
been  a  pubhcation  is  often  a  difficult  que.stion.  The  representa- 
tion of  a  play  at  a  theatre  is  not  such  a  publication  as  will  de- 
prive the  author  of  his  common-law  right. ^  And  the  publication 
of  lectures  was  restrained  before  the  passage  of  the  Act  of  Parlia- 
ment for  their  protection,  on  the  ground  of  a  breach  of  confi- 
dence.^ 

Ec{uity  will  also  restrain  the  publication  of  letters;  for  while 
the  person  who  receives  letters  has  a  right  to  the  possession 
thereof,  he  has  only  a  property  for  a  special  purpose,  and  not 
for  the  purpose  of  publication. •''  Under  certain  circumstances, 
however,  the  recipient  of  letters  may  have  a  right  to  publish 
them;  e.  y.,  where  it  is  necessary  to  vindicate  his  character,  or 
for  the  purposes  of  justice.'*    The  writer  of  letters  has  a  right  to 


1  Palmer  i\  De  Witt,  2  S-weeney, 
530.  See,  also,  Keene  v.  Wheatley,  9 
Am.  Law  Reg.  33,  where  the  whole 
.subject  is  examined  at  length  by 
Judge  Cadwalader. 

2  Abernethy  v.  Hutchinson,  3  L.  J. 
Ch.  209. 

3  Pope  V.  Curl,  2  Atk.  342.  See 
Ilopkinson  v.  Burghley,  L.  R.  2  Ch. 
447;  Dock  v.  Dock,  180  Pa.  14; 
Barrett  v.  Fish,  72  Vt.  18.  Although 
at  common  law  the  writer  of  a  letter 
and  his  legal  personal  representatives 
are  entitled  to  prevent  its  publica- 
tion, and  this  is  a  right  of  property, 
the  copyright  in  a  letter  published 
after  the  death  of  the  writer  is  vested 
by  the  Copyright  Act,  1842,  in  the 
proprietor  of  the  letter  itself,  i.  e., 
of  the  paper  and  the  writing  upon  it. 

The  proprietors  of  unpublished 
manuscripts,  written  by  an  author 
long  deceased,  assigned  to  S.  E.  & 
Co..  in  1895,  "all  copyright  which 
we  possess  and  the  exclusive  right 
of  publishing  the  entire  collection 
of  letters,"  S.  E.  &  Co.,  "undertak- 
ing to  return  to  us  all  the  MSR.  when 


copied."  S.  E.  &  Co.  copied  the 
letters,  published  them  in  1898,  and 
returned  the  originals  to  the  assign- 
ors. The  defendant  subsequently 
purchased  the  originals  from  the 
assignors,  with  any  rights  which 
they  might  still  have  therein.  He 
also  took  from  the  legal  personal 
representative  of  the  deceased  a\i- 
thor  an  assignment  of  the  copyright 
and  all  other  rights  of  the  author  iu 
the  letters.  S.  E.  &  Co.  were  now 
registered  as  owners  of  the  copy- 
right : 

Held,  that  by  the  assignment 
S.  E.  &  Co.  had  become  proprietors 
of  the  author's  manuscript  so  as  to 
enable  them  by  first  publication  to 
obtain  the  copyright  in  the  letters, 
and  that  they  were  entitled  to  an 
injunction  restraining  the  defend- 
ant from  publishing  the  letters. 
Macmillan  &  Co.  v.  Dent  [1907],  1 
Ch.  107. 

*  Lord  Perceval  v.  Phipps,  2  V.  & 
B.  25;  Gee  v.  Pritchard,  2  Swanst. 
428;  Folsom  v.  Marsh,  2  Story,  400; 
Barrett  v.  Fish,  72  Vt.  18. 


'H.  IT.] 


INJUNCTIONS. 


649 


publish  them;   and  this  right  cannot  be  controlled  by  the  re- 
ceiver.^ 

It  may  also  be  stated  that,  on  general  principles  of  equity, 
the  publication  of  any  manuscript  will  be  restrained  when  such 
publication  would  involve  a  breach  of  confidence  or  other  viola- 
tion of  duty.-  And,  on  the  same  principle,  a  photographer  may 
be  restrained  from  reproducing  likenesses  of  a  customer  from  the 
negative  which  has  been  allowed  to  remain  in  his  possession.^ 

456.  Trade-marks. 

The  jurisdiction  of  equity  to  restrain  the  infringement  of 
trade-marks  is  exercised  for  the  protection  of  a  legal  right  in 
property.  Every  man  who  manufactures  or  sells  goods  has  the 
right  to  distinguish  them  from  similar  goods  sold  or  manufac- 
tured by  another;  and  for  this  purpose,  he  has  the  further  privi- 
lege of  using  some  particular  mark  or  symbol.'*  This  mark  or 
symbol  is  known  as  a  trade-mark,  and  it  is  used  for  the  purpose 
of  denoting  that  the  article  to  which  it  is  affixed  is  sold  or  manu- 
factured by  the  party  using  the  mark  or  by  his  authority,  or  that 
he  carries  on  his  business  at  a  particular  place. 

It  is  an  invasion  of  the  right  above  stated  for  one  man  to  sell 
his  goods  as  those  of  another ;  and  when  this  invasion  is  effected 
by  means  of  counterfeiting  or  imitating  a  trade-mark  or  by 
making  use  of  another  trade-mark  which  is  calculated  to  deceive 
the  public  into  a  belief  that  the  spurious  symbol  is  the  original, 
such  an  invasion  is  an  infringement  of  the  property  in  the  trade- 
mark, and  will  be  restrained  by  a  court  of  equity  by  its  writ  of 
injunction.'' 


1  Kerr  on  Injunctions,  186,  187. 

2  See  Stapleton  v.  Foreign  Vine- 
yard Ass'n,  12  Week.  Rep.  976; 
Scheile  v.  Brakell,  11  Id.  796;  Joyce 
on  Injunctions,  3.50.  As  where  a 
publisher  has  become  insolvent  and 
unable  to  pay  the  royalties  agreed 
upon.  Saltus  v.  Bedford  Co.,  133 
N.  Y.  499. 

3  Pollard  V.  Photographic  Co.,  40 
Ch.  D.  345.  See,  however,  Roberson 
V.  Rochester  Folding-Box  Co.,  171 
N.  Y.  .538. 

*  A  trade-mark  may  symbolize  a 
style  of  workmanship.      Schmalz   v. 


absence  of  actual  fraud,  one  is  not 
entitled  to  protection  in  the  exclu- 
sive use  of  a  label  for  goods,  unless 
it  is  used  to  distinguish  some  visible 
commodity  owned  or  traded  in  by 
him,  Lawlor  v.  Merritt,  78  Conn. 
630;  in  this  case  the  label  was  used 
by  a  union  of  hatters  for  use  in  hats 
made  in  whole  or  part  by  some  of 
its  members.  The  union  w^as  not 
the  manufacturer. 

5  See  Bradley  v.  Norton,  33  Conn. 
157;  Fischer  v.  Blank,  138  N.  Y.  244; 
Robinson  r.  Storm,  103  Tenn.  40; 
Lare  v.  Harper  and  Bros.,  .30  C.  C.  A. 


Wooley,  57  N.  J.  Eq.  303.     In  the      373,  and  note;  Drake  Medicine  Co. 


GoO 


INJUNCTIONS. 


[part  111 


The  right  of  property  m  trade-marks  was  recognized  in  the 
common-law  courts  at  an  early  date/  but  a  long  period  elapsed 
before  such  right  was  protected  by  injunction  in  a  court  of  equity  .^ 
During  the  last  thirty  years  of  the  nineteenth  century,  however, 
the  jurisdiction  of  chancery  in  such  cases  became  thoroughly 
established,  and  was  then  and  now  is  frequently  exercised;  and  a 
vast  number  of  authorities  exist  on  both  sides  of  the  Atlantic 
wherein  this  species  of  property  has  been  protected  by  writs  of 
injunction.^ 


V.  Glessner,  68  Ohio,  337;  Rains  v. 
White,  107  Ky.  114;  Leather  Cloth 
Co.  V.  American  Leather  Cloth  Co., 
11  H.  L.  Cas.  523;  Powell  v.  Birming- 
ham Vin.  Brew.  Co.  [1896],  2  Ch.  54. 
It  has  been  decided  that  the  mere 
sale  of  a  manufactured  article,  iden- 
tical with  an  article  manufactured 
by  the  plaintiff,  will  not  be  enjoined 
if  the  plaintiff  has  no  patent.  The 
law  of  trade-marks  (it  was  said)  does 
not  cover  such  a  case;  Putnam  Nail 
Co.  V.  Dulaney,  140  Pa.  205.  Yet 
it  has  been  held,  in  such  a  case,  that 
the  defendant  will  be  required  to 
mark  the  article  sold  by  him  so  as 
to  indicate  unmistakably  that  it  is 
of  defendant's  make  and  not  that 
of  the  plaintiff.  Flagg  Mfg.  Co.  v. 
Holway,  178  Mass.  83.  See,  also, 
Centaur  Co.  v.  Link,  62  N.  J.  Eq. 
147.  It  is  not  necessary  to  restrain 
an  alleged  infringement  of  a  trade- 
mark that  anyone  must  be  actually 
deceived— it  is  sufficient  if  the  im- 
itation is  calculated  to  deceive. 
Bourne  v.  Swan  &  Edgar,  Ltd. 
[1903],  1  Ch.  211.  On  the  other 
hand,  actual  deception  of  one  wit- 
ness is  not  necessarily  conclusive 
of  an  infringement.  A  witness  may 
be  "really  too  foolish,"  per  Malins, 
V.  C,  in  Civil  Service  Supply  Ass'n 
V.  Dean,  13  Ch.  D.  512.  In  another 
case  it  was  held  that  where  the  owner 
of  a  shoe  store  marked  all  of  the  shoes 
he  sold  "eagle  shoes,"  though  they 
were  procured  from  various  sources, 


so  that  the  name  did  not  indicate  any 
particular  brand  or  make  of  shoes, 
he  is  not  entitled  to  protection  in 
the  use  of  the  name.  One  who  pro- 
cured from  a  manufacturer  shoes 
marked  "eagle  shoes,"  could  not  be 
enjoined  from  selHng  them  by  one 
who  had  previously  built  up  a  busi- 
ness in  the  sale  of  shoes  and  who 
marked  all  his  shoes  "eagle  shoes," 
where  the  name  had  formerly  been 
used  by  various  manufacturers  and 
where  the  person  sought  to  be  en- 
joined did  not  attempt  in  any  way 
to  deceive  the  public  into  the  belief 
that  they  were  buying  the  shoe;-; 
offered  for  sale  by  the  other  person, 
Perlberg  r.  Smith,  70  N.  J.  Eq.  638, 

1  Southern  r.  How,  Popham,  143, 
See  Browne  on  Trade-Marks,  Chap.  I. 

2  Blanchard  r.  Hill,  2  Atk.  484. 
See  Dixon  Crucible  Co.  v.  Guggen- 
heim, 2  Brews.  326,  for  a  discussiori 
of  the  history  of  the  law  upon  this 
subject. 

3  See  Knott  v.  Morgan,  2  Keen, 
213;  Gout  V.  Aleploglu,  6  Beav.  69; 
Perry  r.  Truefitt,  Id.  66;  Croft  v. 
Day,  7  Id.  84;  Banks  v.  Gibson,  34 
Id.  556;  Farina  v.  Silverlock,  6  De 
G.,  M.  &  G.  214;  Glenny  v.  Smith,  2 
Dr.  &  Sm.  476;  Edelsten  v.  Edelsten, 
1  De  G.,  J.  &  Sm.  185;  Seixo  v. 
Provezende.  L.  R.  1  Ch.  192;  Ains- 
worth  V.  Walmsley,  L.  R.  1  Eq.  518; 
Marshall  v.  Ross,  8  Id.  651;  Braham 
V.  Bustard,  1  Hem.  &  M.  447;  Cocks 
V.  Chandler,  L.  R.  11  Eq.  446;  Dent 


CH.  II.J 


INJUNCTIONS. 


651 


Indeed,  the  law  upon  the  subject  of  trade-marks  now  occu- 
pies a  large  space  in  modern  works  on  injunctions,  and  has  grown 
into  a  system  sufficiently  extensive  to  call  for  a  separate  treatise ;  * 
and  while  an  elaborate  discussion  of  the  authorities  woukl  un- 
doubtedly be  out  of  place  in  a  work  like  the  present,  it  will, 
nevertheless,  be  proper  to  refer  very  briefly  to  one  or  two  of  the 
decisions,  and  to  the  general  principles  which  have  been  estab- 
lished.' 


V.  Turpin,  2  Johns.  &  Hen.  1:39; 
Collins  Co.  V.  Brown,  3  K.  &  J.  42:5; 
Emperor  of  Austria  v.  Day,  o  De  G., 
F.  &  J.  217;  Gillot  v.  Esterbrook, 
47  Barb.  455;  Congress  and  Empire 
Spring  Co.  v.  High  Rock  Spring  Co., 
57  Id.  526;  45  N.  Y.  291;  Woodward 
V.  Lazar,  21  Cal.  448;  Walton  v. 
Crowley,  :?  Blatchf.  C.  C.  440;  Hos- 
tetter  v.  Vowinkle,  1  Dillon  C.  C. 
:329;  Filley  v.  Fassett,  44  Mo.  16S; 
Davis  V.  Kendall,  2  R.  I.  5G6;  Sar- 
tor V.  Schaden,  125  la.  696;  Mani- 
towoc Malting  Co.  i\  Milwaukee 
Malting  Co.,  119  Wis.  54:5;  La  So- 
ciedad  "  Germinal "  v.  Nabla,  10 
Phil.  Rep.  IS.  In  1870  an  Act  of 
('ongress  was  passed  by  which  per- 
sons entitled  to  use  any  trade-mark, 
or  who  intended  to  adopt  any  for  ex- 
clusive u.se,  were  granted  protection, 
for  thirty  years  with  a  privilege  of 
renewal,  under  certain  restrictions, 
and  upon  compliance  with  the  regu- 
lations prescribed  by  the  act.  See 
16  U.  S.  Stat,  at  Large,  210.  But 
this  act  was,  in  1879,  declared- 
unconstitutional.  See  Trade-mark 
Ca.ses,  100  U.  S.  82.  Trade-marks, 
however,  used  in  foreign  commerce 
are  protected  by  statute.  21  U.  S. 
Stat,  at  Large,  502.  See  25  Id. 
1:375.  The  development  of  the  ju- 
risdiction of  chancery  as  to  trade- 
marks is  well  illustrated  in  a  very 
recent  English  case.  There  the  Cai- 
thusian  monks,  living  at  the  mon- 
astery of  the  Grand  Chartreuse 
in  France,  manufactm-ed   a  liqueur 


known  as  "Chartreuse,"  and  sold 
the  same  in  England  as  well  as  else- 
where, in  which  place  the  article  had 
acquired  a  great  reputation,  and 
where  there  was  registered  a  trade- 
mark name  using  the  word  "  Char- 
treuse," coupled  with  the  device  of 
the  order  and  the  signature  of  its 
then  procureur.  Subsequently,  un- 
der French  law  the  property  of  the 
order,  including  their  trade-marks, 
passed  through  mesne  transfers  to 
tlie  defendants,  who  continued  the 
manufacture  of  the  liqueur  but  not 
by  the  secret  process.  The  monks, 
being  expelled  from  France,  took 
refuge  in  Spain,  where  they  con- 
tinued the  manufacture  of  the  liqueur 
by  the  old  secret  process,  and  sold 
the  product  in  England  by  the 
plaintiffs  who  sought  to  enjoin  the 
defendants  from  selling  the  latter's 
product  in  bottles  of  the  old  shape, 
with  the  old  device  and  word  "  Char- 
treuse." It  was  held  that  the  com- 
plainants were  entitled  to  their  in- 
junction and  that  the  name  of  the 
defendants'  representative  should  be 
expunged  from  the  registry  of 
trade-marks.  Rey  v.  Lecouturier 
[1908],  2  Ch.  715. 

1  Browne  on  Trade-Marks. 

2  For  general  discussion  of  the 
subject,  see  Reddaway  r.  Banham 
[1890],  A.  C.  199;  reversing  same  case 
in  [1895]  1  Q.  B.  286;  Powell  v.  Birm- 
ingham Vinegar  Brewing  Co.  [1896],  2 
Ch.  54,  and  The  Cellular  Clothing 
Co.  V.  Maxton  [1899],  A.  C.  326. 


().52 


INMINTTIONS. 


[part  III. 


Ill  The  Leather  Cloth  Co.  v.  The  American  Leather  Cloth  Co.,^ 
the  complainants  sought  to  obtain  an  injunction  restraining  an 
alleged  infringement  of  their  trade-mark,  which  consisted  of  a 
certain  device  (the  American  eagle)  surrounded  by  words  \)nv- 
porting  to  be  a  description  of  goods. 

This  description  was  false  in  certain  particulars.  The  defend- 
ants made  use  of  a  trade-mark  somewhat  resembling  that  of 
the  complainants,  but  not  enough  to  deceive  a  purchaser  using 
ordinary  caution.  Upon  a  bill  being  filed  to  restrain  the  use  of 
the  defendants '  trade-mark  as  an  infringement  upon  that  of  the 
plaintiffs',  it  was  held  by  Lord  Chancellor  Westbury,-  that  the 
complainants  were  not  entitled  to  relief,  because  they  themselves 
had  been  guilty  of  a  false  assertion  calculated  to  deceive  the  pub- 
lic, and  by  the  House  of  Lords,  affirming  his  decision,  that  the 
difference  between  the  two  trade-marks  was  such  that  no  infringe- 
ment could  be  said  to  exist.  This  case  therefore  may  be  con- 
sidered as  establishing  two  propositions:  first,  that  the  trade- 
mark for  which  protection  is  sought  must  not  itself  deceive  the 
pubhc;^  and  second,  that  the  imitation,  to  be  an  infringement, 
must  be  one  calculated  to  deceive  a  purchaser  using  ordinary 


1  11  H.  L.  Cas.  5 

2  10  Jurist  {7f.  s.),  81. 

a  See  Blakely  v.  Sousa,  197  Pa.  305, 
and  Messer  v.  The  Fadettes,  168 
Mass.  140,  where  the  subject  is  fully 
discus.sed.  See,  also,  Hughes  r. 
Statham,  4  Barn.  &  Cress.  187,  and 
Skinner  v.  Oakes,  10  Mo.  App.  45. 
The  maxim  that  "  he  who  comes 
into  a  court  of  equity  must  come  with 
clean  hands,"  applies  in  such  cases. 
Worden  v.  California  Fig  Syrup  Co., 
187  U.  S.  517;  Memphis  Institute  v. 
Keeley,  155  Fed.  Rep.  964;  Palmer  r, 
Harris,  60  Pa.  156;  McVey  v.  Bren- 
del,  144  Id.  249;  Dadirrian  v.  Ya- 
cubian,  39  C.  C.  \.  325.  See,  also, 
Pidding  v.  How,  8  Sim.  477;  Flavel  v. 
Harrison,  10  Hare,  467;  Kenny  ?'. 
Gillet,  70  Md.  574:  Stirling  Silk  Mfg. 
Co.  V.  Sterling  Silk  Co.,  59  X.  J.  Eq. 
394.  See,  however.  Ford  v.  Foster, 
L.  R.  7  Ch.  611;  Regent  Shoe  Co.  r. 
Haaker,  75  Neb.  426;  Epperson   c. 


Bluthenthal,  149  Ala.  125;  Lemke  v. 
Dietz,  121  Wis.  102.  The  fact  that 
complainant  had  formerly  fal.sely 
represented  in  its  circulars  that  it 
had  exclusive  right  to  use  the  de- 
vices which  its  labels  bore,  does  not 
disentitle  it  to  relief,  the  false  claim 
having  been  withdrawn  three  years 
liefore  the  suit  was  brought.  The 
refusal  to  hear  a  party  who  comes 
into  court  with  unclean  hands  is 
based  upon  the  conditions  existing 
when  the  party  applies  for  aid. 
Johnson  v.  Seabury,  69  X.  J.  Eq. 
696.  The  complainant's  advertise- 
ment of  its  water  as  "bottled  at  the 
spring,"  when  in  fact  it  was  bottled 
at  a  city  warehouse,  and  also  the 
declaration  in  such  advertisement 
that  such  water  is  a  cure  for  certain 
diseases  named  therein  contrary  to 
the  truth,  are  such  misrepresenta- 
tions as  will  induce  the  court  to  re- 
fuse    the    complainant    any    relief. 


CH.  II.] 


INJUNCTIONS. 


653 


caut  ion .    Deception  or  probable  deception  is  the  test  of  granting 
or  refusing  relief.* 

But  it  must  be  remembered  that  while  the  test  of  an  infringe- 
ment may  be  whether  or  not  the  public,  exercising  ordinary 
caution,  are  deceived,^  yet  the  ground  upon  which  the  jurisdic- 
tion of  the  court  rests,  in  such  cases,  is  not  the  fraud  upon  the 
l)ubli(',  but  the  invasion  of  property.^  Therefore  it  has  been 
well  said,  in  a  recent  case,  that  there  are  two  classes  of  cases 
involving  judicial  interference  with  the  use  of  names,  first,  where 
the  intent  is  to  get  an  unfair  and  fi'audulent  share  of  another's 
business  ■*  and  second  where  the  effect  of  defendant's  action,  ir- 
respective of  his  intent,  is  to  produce  a  confusion  in  the  public 
mind  and  consequent  loss  to  the  complainant.^ 


Great  Lithia  Spring  Co.  v.  Great 
Bear  Spring  Company,  71  N.  J.  Eq. 
595. 

1  Kann  v.  Diamond  Steel  Co.,  32 
C.  C.  A.  324-329. 

2  Coats  V.  Merrick  Thread  Co.,  149 
U.  S.  562;  Centaur  Co.  v.  Neathery, 
34  C.  C.  A.  125;  Kyle  v.  Perfection 
Mattress  Co.,  127  Ala.  39;  Procter 
&  Gamble  Co.  v.  Globe  Refining  Co., 
34  C.  C.  A.  405;  Centaur  Co.  v.  Mar- 
shall, 38  C.  C.  A.  417. 

3  See  the  opinion  of  Lord  West- 
bury  in  10  Jur.  (n.  s.)  81.  See,  also, 
Clark  V.  Freeman,  11  Beav.  112; 
Hir.sch  v.  Jonas,  3  Ch.  D.  584;  Good- 
year's  India  Rubber  Glove  Mfg.  Co. 
V.  Goodyear  Rubber  Co.,  128  U.  S. 
598;  Dixon  Crucible  Co.  v.  Guggen- 
heim, 2  Brews.  332;  Ilolbrook  r. 
Nesbitt,  163  Mass.  120;  Mattingly 
Co.  V.  Mattingly,  etc.,  96  Ky.  430. 
See  Watkins  Medical  Co.  v.  Sands, 
80  Minn.  89  (s.  c.  S3  Id.  326);  In- 
ternal. Com.  Y.  W.  C.  A.  V.  Y.  W. 
C.  A.,  194  111.  194;  Joyce  on  Injunc- 
tions, 312.  But  see  Chad  wick  v. 
Covell,  151  Mass.  190;  Trask  Fish 
Co.  V.  Wooster,  28  Mo.  App.  408, 
and  the  Hopkins  Amusement  Com- 
pany r.  Charles  Frolmiaii,  202  111. 
541;  People  v.  Rose,  225  111.  496. 

1  The    adoption    by    a    telephone 


company  of  the  same  number  as  a 
call  for  its  Trouble  Department  as 
that  used  by  a  rival  company 
previously  estabhshed  for  its  Trouble 
Department,  enabling  the  newer 
company  to  learn  through  mistakes 
of  subscribers  of  the  older  company 
of  cases  of  trouble  in  the  use  of  its 
telephones  was  not  unfair  competi- 
tion against  which  an  injunction 
would  issue.  The  number  888  used 
by  a  telephone  company  as  a  call  for 
its  Trouble  Department  is  not  a  trade- 
mark or  trade-name  so  as  to  deprive 
another  company,  subsequently  or- 
ganized, of  the  right  of  using  the 
same  number  as  the  call  for  its 
Trouble  Department.  Rocky  Moun- 
tain Tel.  Co.  V.  Telephone  Co.,  31 
Utah,  377. 

5  American  Clay  Mfg.  Co.  v. 
.\merican  Clay  Mfg.  Co.,  198  Pa. 
193.  See,  also.  North  Cheshire  & 
Manchester  Brewery  Co.  r.  Man- 
chester Brewery  Co.  [1899],  A.  C.  83; 
Holmes  v.  Holmes  Mfg.  Co.,  37 
Conn.  278;  Hires  v.  Consumers'  Co., 
41  C.  C.  A.  71;  Fox  Co.  v.  Hathaway, 
199  Mass.  99,  and  Nesne  v.  Sundet,  93 
Minn.  299;  Johnson  v.  Seabury,  69 
N.  J.  Eq.  696.  It  is  no  objection  to 
injunction  against  the  use  of  a  cor- 
porate name  that  it  does  not  appear 


654 


INJUNCTIONS. 


[part  III. 


457.  What  are  trade-marks. 

Any  name,  symbol,  or  emblem  may,  in  general,  be  a  trade- 
mark. 

But  a  word  which  is  merely  descriptive  of  the  article,  or  which 
is  the  current  name  of  an  article,  or  which  merely  denotes  the 
general  character  of  the  business,  cannot  be  used  as  a  trade- 
mark.^ 

The  name  of  a  country  or  section  of  a  country  cannot  be  ap- 
propriated as  a  trade-mark  by  the  owner  of  a  particular  product 
{e.  g.,  coal)  of  that  country,  so  as  to  exclude  owners  of  other 
similar  products  coming  from  the  same  country  or  section  of 
country  from  using  the  name.-  But  while  a  name  of  a  country 
may  not,  in  general,  be  adopted  as  a  trade-mark,  yet  when  it 
has  been  adopted,  first  as  merely  indicating  the  place  of  manu- 
factiu'e  and  afterwards  has  become  a  well  known  sign  and  symbol 
for  superior  excellence,  persons  residing  at  other  places  will  not 
be  permitted  to  use  it  as  a  brand  or  label  for  similar  goods  for  the 
purpose  of  appropriating  the  good  \\ill  and  business  of  another.'"^ 

A  man's  name  may  be  a  trade-mark;  and  it  may  become  one 


that  any  wrong  has  been  done  or 
that  there  is  danger  thereof  to  com- 
plainant's injury,  as  in  such  a  case 
complainant  must  act  promptly  be- 
fore the  rights  of  innocent  stock- 
holders in  the  defendant  corpora- 
tion may  become  involved.  Edison 
Co.  r.  Edison  Co.,  67  N.  J.  Eq. 
44. 

1  Perry  r.  Truefitt,  G  Beav.  (iO; 
Raggett  V.  Findlater,  L.  R.  17  Eq.  25); 
Gillott  V.  Esterbrook,  47  Barb.  45.5; 
Caswell  V.  Davis,  58  N.  Y.  22:];  Cooke 
&  Cobb  Co.  V.  Miller,  169  N.  Y.  475; 
Watkins  Medical  Co.  r.  Sands,  S:; 
Minn.  :!2();  Trask  Fish  Co.  v.  Wooster, 
28  Mo.  .Vpp.  408;  Scott  v.  Standard 
Oil  Co.,  106  Ala.  475;  Barrett  Chem- 
ical Co.  r.  Stern,  176  N.  Y.  27. 

2  Canal  Co.  r.  Clark,  1.3  Wall.  311. 
See,  also.  Grand  Hotel  Co.  of  Cale- 
donia Springs  r.  Wilson  [1904],  A.  C. 
10.3;  Coodyoar's  India  Rubber  Clove 
Mfg.  Co.  I'.  Cioodyear  Unbbcr  Co., 
128  U.  S.  598;  Coiumbia  Mill  Co.  v. 
Alcorn,  150  U.  S.  460;  Morgan  En- 


velope Co.  V.  Walton,  .30  C.  C.  A. 
383;  Coffman  v.  Castner,  31  Id.  55 
(see  Atwater  v.  Castner,  32  Id.  77, 
contra);  Newman  r.  Alvord,  51  N.  Y. 
189;  Mc Andrew  v.  Bassett,  10  Jr. 
(n.  s.)  550;  Seixo  v.  Provezende,  L. 
R.  1  Ch.  192;  .\moskeag  Mfg.  Co.  v. 
Spear,  2  Sandf.  (S.  Ct.)  599;  Board- 
man  V.  Meriden  Britannia  Co.,  35 
Conn.  402;  Glendon  Iron  Co.  v. 
Uhler,  75  Pa.  467;  Laughman's  Ap- 
peal, 128  Pa.  19;  Kinney  i'.  Basch, 
16  Am.  L.  Reg.  (n.  s.)  596.  When 
the  name  of  a  hotel,  though  using 
the  name  of  the  place  where  it  is 
situated,  is  so  similar  to  an  older 
established  hotel  as  to  deceive  the 
public,  the  former  will  be  enjoined 
from  the  u.se  of  such  name.  Busch 
r.  Gross,  71  N.J.  Eq.  508. 

3  Pillsbury-Washburn  Flour  Mills 
Co.  V.  Eagle,  30  C.  C.  A.  386  (where 
the  authorities  are  collected  and  dis- 
cussed); Mc.Vndrew  ;•.  Bassett,  4  De 
G.,  J.  &  S.  380; -Lynn  Shoe  Co.  v. 
Auburn-Lynn  Shoe  Co.,  100  Me.  461. 


CH.  II.] 


INJUNCTIONS. 


655 


to  such  an  extent  as  to  prevent  any  other  person  of  the  same 
name  from  using  his  own  name  in  connection  with  a  similar  ar- 
ticle.^   But  this  is  not  always  so,  as  is  shown  by  a  modern  case. 


1  Croft  V.  Day,  7  Ikav.  84;  Hollo- 
way  7".  Ilolloway,  13  Id.  209;  Burgess 
V.  Burgess,  4  De  G.,  M.  &  G.  896; 
Kohler  Mfg.  Co.  v.  Beshore,  17  U.  S. 
App.  352;  Stuart  v.  .Stewart  Co.,  33 
C.  C.  A.  480;  Nolan  Bros.  Shoe  Co. 
V.  Nolan,  131  Cal.  271;  Allegretti  v. 
Allegretti,  177  111.  129;  Robinson 
V.  Storm,  103  Tenn.  40;  Penberthy 
Injct.  Co.  V.  Lee,  120  Mich.  174. 
Also  a  man's  address.  Kennedy 
Corp.  V.  Kenned.v,  1()5  X.  Y.  353. 
See  in  this  general  connection.  Singer 
Manufacturing  Co.  r.  June  Manu- 
iacturing  Co.,  163  U.  S.  169;  Inter- 
national Silver  Co.  v.  Rogers,  71 
X.  J.  Eq.  560;  Van  Stan  Co.  v.  Van 
Stan,  209  Pa.  564;  Edison  Co.  v. 
Edison  Co.,  67  N.  J.  Eq.  44;  Shef- 
field Co.  V.  Sheffield  Co.,  105  Minn. 
315.  "  The  name  of  a  person  or  town 
may  become  so  associated  with  a 
particular  product  that  the  mere  at- 
taching of  that  name  to  a  similar 
product  without  more  would  have 
all  the  effect  of  a  falsehood,  and 
while  the  use  of  that  name  cannot 
i)e  absolutely  prohibited,  it  can  be 
i(;strained  except  when  accompanied 
with  a  sufficient  explanation  to  pre- 
vent confusion  with  the  product  of 
the  original  manufacturer  or  original 
place  of  production."  Herring-Hall 
Co.  V.  Hall's  Safe  Company,  208  U.  S. 
554.  It  is  not  the  use  simply,  but 
the  dishonest  use,  of  a  person's 
name  which  is  an  infringement  upon 
llie  rights  of  another  and  which  a 
court  of  equity  will  prevent  by  in- 
junction. Where  there  is  no  intent 
to  8(41  goods  as  the  product  of  an- 
other there  can  be  no  exclusive  ap- 
propriation of  a  family  name  as  a 
trade-mark.  Home  Scale  Co.  v. 
Wyckoff,   198  U.  S.   118.     A  person 


has  an  undoubted  right  to  engage  in 
business  in  his  own  name,  but  doing 
so  he  will  not  be  allowed,  by  any  de- 
vice, to  deceive  the  public  as  to  the 
identity  of  his  business  product. 
Morton  v.  Morton,  148  Cal.  142. 
And  where  the  use  of  a  family  name, 
though,  fairly  used  with  proper  ini- 
tials, yet  is  so  employed  on  circu- 
lars, advertisements,  etc.,  as  to  cause 
unlawful  competition,  such  use  will 
be  enjoined.  Foultz  Co.  v.  Foultz 
Co.,  L63  Fed.  Rep.  408.  And 
this  right  to  use  one's  name  cannot 
confer  upon  a  corporation,  subse- 
quentlj'  formed,  the  right  to  use  that 
name  to  the  injury  of  a  well- 
established  business  trading  under 
that  name,  where  the  first  individual 
never,  as  an  individual,  had  engaged 
in  that  particular  business.  Fine 
Cotton  Spinner  Association  v.  Har- 
wood  [1907],  2  Ch.  184.  The  mere 
offensiveness  to  an  individual  of  the 
use  of  his  name  in  trade  does  not 
justify  the  interference  of  a  chan- 
cellor, but  when  there  is  the  added 
circumstance  of  deception  practised 
upon  the  public  by  such  person's 
name  indicating  his  patronage  of 
the  party  using  his  name,  an  in- 
junction will  be  granted  against  such 
party  forbidding  him  from  doing 
anything  to  induce  the  belic^f  in  the 
patronage  of  the  person  whose  name 
is  so  used.  Von  Thodorovich  v. 
Franz  Josef  Association,  154  Fed. 
Rep.  911.  And  where  it  is  a  corpo- 
lation  that  complains  of  another  cor- 
poration becau.se  the  latter  infringes 
upon  its  corporate  title  such  com- 
plainant must  show  that  its  corporate 
rights  were  in  existence,  or  that  it 
carried  on  its  business  in  accordance 
therewith,  before  the  defendant  com- 


656 


INJUNCTIONS. 


[part   III. 


In  Thomas  Turton  &  Sons  v.  John  Turion  &  Sons,^  it  appeared 
that  the  plaintiffs  had  for  many  years  carried  on  business  as 
Thomas  Turton  &  Sons.  It  also  appeared  that  the  defendant, 
John  Turton,  liad  likewise,  for  many  years,  carried  on  a  similar 
business  in  the  same  city  under  the  name  of  John  Turton,  and 
afterwards  under  the  name  of  John  Turton  &  Co.;  and  that  he 
subsequently  took  his  sons  into  partnership  and  continued  the 
business  under  the  name  of  John  Turton  &  Sons.  It  was  held 
that  though  the  public  might  be,  at  times,  misled  by  the  simi- 
larity of  names,  yet  no  injunction  could  issue  to  restrain  the  de- 
fendants from  the  use  of  their  own  names.  The  question  is  one 
of  good  faith;  2  but  if  there  is  an  actual  infringement,  an  injunc- 
tion may  issue,  although  there  is  no  intention  to  deceive.^ 

The  size  or  shape  or  mode  of  construction  of  a  box,  barrel, 
bottle,  or  package,  in  which  goods  are  put  up,  cannot  be  pro- 
tected as  a  trade-mark.'* 

The  plan  of  weaving  the  manufacturer's  name  in  the  selvedge 
or  margin  of  silk  goods  cannot  be  protected  as  a  patentable  de- 
vice or  trade-mark.  It  is  a  mere  method  of  putting  the  name 
of  the  manufacturer  upon  the  article  manufactured.^ 

A  man  cannot  acquire  a  trade-mark  until  the  article  to  which 


mitted  the  alleged  acts  of  infringe- 
ment. Durham  Tobacco  Co.  v. 
American  Tobacco  Co.,  145  N.  C.  .367. 

1  Turton  v.  Turton,  42  Ch.  D.  128; 
Dunlop  Tyre  Co.  r.  Dunlop  Motor 
Co.  [1907],  A.  C.  430;  Kohler  Mfg. 
Co.  V.  Beshore,  17  U.  S.  App.  352; 
Watkins  Med.  Co.  v.  Sands,  83  Minn. 
32G.  As  to  assumption  of  the  name 
or  title  of  another,  independently  of 
the  law  of  trade-marks,  see  Cowley 
r.  Cowley  [litOl],  A.  C.  4.50. 

-  H.  W.  Rogers  Co.  v.  Wm.  Rogers 
Co.,  35  U.  S.  App.  842;  Wyckoff  i-. 
Howe  Scale  Co.,  58  C.  C.  A.  510. 
See  Lafean  v.  Weeks,  177  Pa.  412. 
Proof  of  fraudulent  intent  is  not 
essential.  If  a  representation,  false 
in  fact,  though  ignorantly  or  inno- 
cently or  mistakenly  made,  be 
.shown,  the  plaintilY  is  entitled  to 
relief  by  way  of  injunction.  The 
action    of    the   court   depends    upon 


the  right  of  the  plaintiff  and  tlie 
injury  to  that  right,  not  upon  the 
motive  of  the  defendant.  Inter- 
national Silver  Co.  v.  Rogers,  66 
N.  J.  Eq.  119. 

3  Vulcan  V.  Myers,  139  N.  Y.  364; 
Dodge  Stationery  Co.  v.  Dodge,  145 
Cal.  380. 

i  Hoyt  V.  Hoyt,  143  Pa.  623.  See 
Weinstock,  etc.,  v.  Marks,  109  Cal. 
529,  a  case  in  which  the  defendant 
had  erected  a  house  adjoining  that 
of  the  plaintiff  and  precisely  like  it. 
It  was  held  to  be  a  ca.se  for  relief. 
See,  aLso,  New  Eng.  Awl  &  Needle 
Co.  V.  Marlborough  Awl  &  Needle 
Co.,  168  Mass.  154.  Ordinarily  a 
color  cannot  be  monopolized  to  dis- 
tinguish a  product.  Diamond  Match 
Co.  V.  Saginaw  Match  Co.,  142  Fed. 
Rep.  727. 

5  Stirling  Silk  Mfg.  Co.  v.  Sterling 
Silk  Co.,  59  N.  J.  Eq.  394. 


CH.  II.]  INJUNCTIONS.  657 

it  is  applied  is  actually  made  and  i)ut  in  the  market.  Thus,  an 
injunction  was  refused  to  a  publisher  who  had  announced,  but 
had  not  actually  published,  a  magazine  called  "Belgravia,"  to 
I'estrain  another  publisher  who  had  hastily  brought  out  another 
magazine  bearing  the  same  name,  from  continuing  to  use  that 
title.^ 

The  following  conclusions  may  be  stated  as  summing  up  the 
result  of  recent  authorities :  ^ 

1.  The  sale  of  goods  of  one  manufacturer  as  those  of  another 
is  unfair  competition,  constitutes  a  fraud,  and  may  be  enjoined. "'' 

2.  Geographical  terms  and  words  descriptive  of  the  character, 
([uality  or  places  of  manufacture  or  of  sale,  cannot  be  monopo- 
lized as  trade-marks.'* 

3.  But  where  an  alleged  trade-mark  is  not  in  itself  a  good 
trade-ma:";,  yet  the  use  of  the  word  has  come  to  denote  the 
particular  manufacturer  or  vendor,  r(;lief  against  unfair  compe- 
tition or  perfidious  dealing  will  be  awarded  by  requiring  the  use 
of  the  word  by  another  to  be  confined  to  its  primary  sense  by 
such  limitations  as  will  prevent  misapprehension  on  the  question 
of  origin.-'^ 

458.  Diligence  ;  colorable  imitations. 

In  order  to  obtain  relief  for  the  protection  of  a  trade-mark 
it  is  necessai'y  that  due  diligence  should  be  used,  and  it  is  further 
necessary  that  the  trade-mark  itself  should  not  contain  any 
misrepresentations;  for  fas  stated  above)  a  trade-mark  which  is 
false,  and  thereby  calculated  to  deceive  the  }niblic,  will  not  be 
protected  by  a  court  of  equity.^ 

Any  imitation  of  a  trade-mark  whereby  an  ordinary  pur- 
chaser might  ])Q,  deceived  into  the  belief  that  the  article  he  was 
buying  was  produced  oi'  manufactured  by  the  owner  of  the 
trade-mark,  is  an  infringement.  It  has  often  happened  that 
differences  have  been  introduced  by  persons  desiring  to  infringe 
a  trade-mark  in  order  to  escape  from  the  rule  above  stated ;  but 

1  Maxwell  v.  Hogg,  L.  R.  2  Ch.  «  Leather  Cloth  Co.  v.  Amcric:m 
:i07.  Leather  Cloth  Co.,  11  H.  L.  Cas.  523. 

2  Shaver  v.  Heller,  48  C.  C.  A.  48.  See  Burt  v.  Tucker,  178  Mass.  49:5,  as 

3  Coats  I'.  Merrick  Thread  Co.,  149  to  what  constitutes  abandonment  of  a 
U.  S.  562.  trade-mark.    See  Houchens  ?'.  Houch- 

*  Canal  Co.  r.  Clark,  V.i  Wall.  .*^11.       ens,  95  Md.  37. 
5  Elgin    Nat.    Watch    Co.     r.    111. 
Watch  Case  Co.,  179  U.  S.  665. 

42 


008 


INJUN'CTIONS. 


[part  III. 


all  such  colorable  differences  are  disregarded  by  the  court,  if  the 
general  result  is  a  misrepresentation.^ 

The  remedies  which  equity  applies  to  cases  of  infringement 
of  trade-marks  are  those  already  noticed  in  patent-right  and 
copyright  cases,  viz.,  an  injunction,  an  account,  and  an  inquiry 
into  damages. 

Before  leaving  the  subject  of  trade-marks,  attention  may  be 
called  to  a  somewhat  analogous  class  of  cases,  those,  namely, 
in  w^hich  a  corporation  or  an  unincorporated  association  has 
been  enjoined  from  using  a  name  similar  to  that  of  some  other 
corporation  or  association,  the  latter  having  first  used  the  name 
enjoined.^ 

459.  Alienation  of  negotiable  secnrities. 

Another  class  of  cases  in  which  injunctions  are  issued  is  where 
irreparable  damages  may  be  done  by  the  alienation  of  property 
prior  to  or  pending  litigation,  or  even  where  no  litigation  may  be 
in  contemplation.  One  of  the  most  striking  instances  of  this 
class  of  cases  occurs  where  the  transfer  of  negotiable  instruments 
which  have  been  fraudulently,  illegally,  or  improperly  obtained, 
or  which  ought  not  to  be  negotiated,  is  enjoined.^  From  the 
nature  of  these  instruments  it  is  obvious  that  if  they  once  get 
into  the  hands  of  an  innocent  holder  for  value,  irreparable  injury 
may  be  done  to  the  party  liable  thereon,  by  depriving  him  of  the 
opportunity  of  making  a  defence  which  he  would  otherwise  be 


1  Sec  Tveather  Cloth  Co.  r.  Ameri- 
can Leather  Cloth  Co.,  11  H.  L. 
Cas.  .523;  Gleiiiiy  v.  Smith,  2  Dr.  & 
Sm.  476;  Seixo  v.  Provezende,  L.  R. 
1  Ch.  192;  Reddaway  i'.  Banham 
[1896],  A.  C.  199;  The  Cellular  Cloth- 
ing Co.  V.  Maxton  [1899],  A.  C.  326; 
Elgin  Nat.  Watch  Co.  v.  Illinois 
Watch  Case  Co.,  179  U.  S.  665; 
Walton  V.  Crowley,  3  Blatchf.  C.  C. 
440;  Clark  v.  Clark,  25  Barb.  70; 
Brooklyn  White  Lead  Co.  v.  Masury, 
Id.  416;  Gillott  v.  Esterbrook,  47  Id. 
455;  Williams  v.  Johnson,  2  Bosw.  1; 
Higgins  Co.  v.  Iliggins  Co.,  144  N.  Y. 
462;  Burke  v.  C^assin,  45  Cal.  467; 
Spieker  v.  Lash,  102  Cal.  38;  Listman 
Mill  Co.  ('.  Wm.  Listman  Milling  Co., 
88  Wis.  334;  Pratt's  App.,   117  Pa. 


401;  Regent  Shoe  ('o.  c.  Haakor.  l.'t 
Neb.  426;  >Samuels  v.  Si)itzer,  177 
Mass.  226;  Kerr  on  Injunctions,  484; 
Cusimans  v.  Olive  Oil  Co.,  114  La. 
312. 

2  Armington  v.  Palmer,  21  R.  I. 
109;  Aiello  v.  Montecalfo,  21  R.  I. 
496;  St.  Patrick's  AHiance  v.  Byrne, 
59  N.J.  Eq.  26;  Red  P.  Cattle  Club  v. 
Red  P.  Cattle  Club,  108  la.  105; 
People  r.  Rose,  219  111.  46.  See,  also, 
for  application  of  a  similar  principle", 
Hetterman  r.  Powers,  102  Ky.  1.33. 

3  Smith  7^  Haytwell,  Amb.  66;  3 
Atk.  566;  Benson  v.  Keller,  37  Oreg. 
120;  Wilcox  v.  Ryals,  110  Ca.  2S7; 
Hairalson  r.  Canson,  111  Id.  57;  Kerr 
on  Injunctions,  595.  But  see  Fowler 
V.  Loomis,  37  111.  App.  363. 


CH.  II.]  INJUNCTlOXh;.  OoU 

entitled  to  set  up.  Hence,  the  jurisdiction  to  restrain  the  negot  i- 
ation  of  such  instruments  u[)on  a  proper  case  being  made  out,  is 
well  established  both  in  England  and  in  this  country.^  So  also 
transfers  of  stock;  sales  of  valuable  chattels  to  which  the  com- 
plainant claims  title;  sales  and  mortgages  of  estates  by  a  mort- 
gagor who  had  improperly  obtained  the  deeds  from  a  mortgagee ; 
and  vexatious  alienations  of  property  pending  litigation,  may 
all  be  restrained  by  injiniction.'  Equity,  however,  will  not  re- 
strain the  negotiation  of  a  promissory  note  if  the  defence  is  one 
which  would  be  available  at  law  against  a  bona  fide  holder;^ 
nor  will  equity  interfere  to  restrain  a  debtor  from  alienating  his 
property  at  the  suit  of  a  creditor  who  has  not  reduced  his  claim 
to  judgment.'* 

460.  Preservation  of  property  pending  litigation. 

Still  another  class  of  cases  in  which  ec^uity  interferes  is  where 
property  which  is  the  subject  of  htigation  is  in  danger  of  injury, 
and  the  interposition  of  the  court  is  necessary  for  its  protection. 
It  will  be  remembered  that  technical  waste  could  only  exist 
when  the  party  committing  it  was  law^fully  in  possession,  and 
that,  therefore,  if  his  claini  was  hostile,  the  remedy  by  injunction 
against  waste,  strictly  speaking,  did  not  lie.^  Where,  however, 
special  circumstances  exist,  as  when  the  party  in  possession 
is  insolvent,  and  unable  to  respond  in  pecuniary  damages;  or 
where  his  actions  are  such  as  to  d(>pi'ive  the  land  of  its  chief 
value,  an  injunction  may  issue  to  protect  the  ])roperty  iHmding 

1  Metier  y.  Metier,  18  N.  J.  E(i.  270.  4!»4;  High  on  Injunctions,  § 'iaO. 
1!)  Id.  457;  Louisville  Ily.  Co.  r.  See  Ervin's  Appeal,  SS  Pa.  ISS,  and 
Louisville  Trust  Co.,  174  U.  S.  5G7.  ante,  p.  583.  The  rights  of  a  judg- 
and  Benson  v.  Keller,  37  Oreg.  120.  nicnt  creditor  will  be  protected  so  as 
See  Ferguson  v.  Fisk,  28  Conn.  M\;  to  restrain  the  judgment  debtor 
Bridges  v.  Robinson,  2  Tenn.  Ch.  from  committing  acts  in  the  nature  of 
720;  High  on  Injunctions,  §712.  waste.  Witmer's  Appeal,  45  Pa.  455. 
See,  also,  Osborn  v.  The  Bank  of  The  See,  also,  Clark's  Appeal,  62  Id.  447, 
United  States,  9  Wheat.  738.  and  Parker  v.  Garrison,  61  111.  250. 

2  Kerr  on  Injunctions,  590,  5!).'!,  In  this  last  case  an  injunction  was 
594;  High  on  Injunctions,  §251;  granted  in  favor  of  a  landlord  to  re- 
Walker  V.  Maddox,  105  Ga.  254,  and  strain  an  insolvent  tenant  from  trans- 
Rowe  V.  Hambarger,   154   Ind.   (i()4.  forring  a  crop  of  corn  with  which  the 

^  Erickson   r.   First   Nat.    Hank   of  rent  was  to  have  been  paid. 

Oakland,  11  Neb.  (■)29,  citing  .\ll('rt()n  5  Pillsworth  ?'.  Hopton,  (>  Ves.  51; 

V.  Belden,  49  N.  Y.  373.  Storm  7'.  Mann,  4  Johns.  Ch.  21.    But 

*  Wiggins  V.  Armstrong,   2  .Johns.  see    Shubrick    v.    (Juerard,    2    Dess. 

Ch.  144;  Buchanan  v.  Marsh,  17  la.  616,  n. 


GGO 


INJUNCTIO.NH. 


[part  III. 


litigation.'  This  is  especially  so  in  the  case  of  mines,  for  there 
the  injury  goes  to  the  very  substance  of  the  estate.^  But  any 
injury  which  is  not  adequately  I'eparable  by  damages,  would  be 
a  sufficient  foundation  for  the  application. •"* 

The  object  of  the  court  in  granting  such  injunctions  is  to  pre- 
serve the  property  in  statu  quo  pending  litigation.  The  com- 
plainant, however,  in  order  to  obtain  the  relief,  must  present 
a  fair  prima  facie  case;  and  in  order  to  secui'e  the  decision  of  the 
court  without  a  trial  at  law,  the  case  must  be  very  clear  and 
plain. ■*  In  cases  of  a  dovd^tful  character,  the  court  will  either 
direct  the  complainant  to  establish  his  title  at  law  in  the  first 
instance,  or  grant  an  injunction  pending  the  Htigation,  according 
to  circumstances,  or  the  exigencies  of  the  particular  case.  In- 
terim orders  are  sometimes  made,  whereby  the  property  is  pre- 
s(U"ved  without  issuing  the  formal  writ.^ 

461.  Breach  of  negative  covenants. 

The  remedy  by  injunction  to  restrain  the  breach  of  negative 
covenants  may  be  said  to  fiuTiish  the  complement  to  the  relief 
by  specific  performance.  An  affirmative  covenant  is  an  agree- 
ment whereby  a  man  undertakes  that  something  shall  be  done; 
and  upon  the  breach  of  such  a  covenant,  and  upon  a  proper  case 
for  equitable  interference  being  made  out,  the  remedy  is  by  a 
bill  for  specific  performance.  On  the  other  hand,  by  a  negative 
covenant,  the  covenantor  promises  that  something  shall  not  be 
done;  and,  therefore,  the  relief  appropriate  to  a  breach  of  such  a 
contract  is  an  injunction.'' 

Injunctions  to  restrain  breaches  of  negative  covenants  are 
issued  when  the  contract  and  the  threatened  breach  are  clearly 


•  Erhardt  v.  Boaro,  113  U.  S.  537: 
Meadow  Valley  r.  Dodds,  6  Nev.  261 ; 
Kinslcr  v.  Clarke,  2  Hill  Ch.  617; 
Hicks  r.  Michael,  15  Cal.  107;  Peak 
V.  Hayden,  3  Bush,  125.  See,  also, 
Kane  r.  Vanderburfih,  1  Johns.  Ch. 
11;  Vizard  v.  Moody,  117  Ca.  67; 
Frecmans  v.  Ammons,  91  Miss.  672. 
Or  where  the  act  will  result  in  great 
damage  to  the  plaintiff,  although  the 
injury  is  not  irreparable.  Staples  v. 
Hossi,   7   Idaho,   618. 

2  U.  S.  V.  Parrott,  McAU.  C.  C.  271 ; 
Freer  v.  Davis,  52  \V.  Va.  1. 


3  Kerr  on  Injunctions,  199. 

4  Id.  208,  209.  See  Duncan  v.  The 
Iron  Works,  136  Pa.  478;  Patterson's 
Appeal,  129  Id.  109. 

5  Kerr  on  Injunctions,  212. 

6  See  Scott  v.  Burton,  2  Ashm.  325; 
Barrett  r.  Blagrave,  5  Ves.  55; 
Franklyn  r.  Tuton,  5  Madd.  469;  Hills 
V.  Miller,  3  Paige  Ch.  254;  Water- 
town  V.  Cowen,  4  Id.  510;  DeGray  v. 
Moiunouth  Beach  Club  House  Co., 
50  N.J.  Eq.  329. 


(11.  II.] 


INJUNCTIONS. 


(>G1 


shown,  and  where  the  recovery  of  damages  at  law  would  furnish 
an  inadequate  redress.  While,  however,  the  theory  upon  which 
this  relief  is  based  is  that  of  preventing  irreparable  injur}',  yet 
the  court  will  not  enter  into  nice  discrimination  as  to  the  extent 
of  the  damage.  It  is  not  necessary,  for  example,  that  an  injuiy 
to  real  property  shall  amount,  directly  speaking,  to  a  nuisance. 
It  is  sufficient  that  the  breach  of  covenant  will  interfere  with 
the  just  enjoyment  of  property.^  Indeed,  the  mere  fact  that 
there  has  been  a  breach  of  covenant  is  a  sufhcient  ground  for 
interference;  and  it  is  no  answer  to  say  that  the  act  complained 
of  will  inflict  no  injury  upon  the  complainant,  or  will  even  be  a 
positive  benefit  to  him.-  Thus,  in  Steward  v.  Winters,"''  where 
a  lease  contained  a  clause  restricting  the  use  of  the  demised 
premises  to  the  "regular  dry  goods  jobbing  business,"  and  the 
lessee  commenced  selling  goods  at  auction  therein,  it  was  held 
that,  although  there  was  no  damage  or  irreparable  injury  done 
to  the  lessor,  and  the  subject-matter  did  not  amount  to  a  nui- 
sance at  law,  yet  it  was  a  breach  of  the  covenant  in  the  lease,  and 
the  landlord  was  entitled  to  an  injunction. 

On  the  other  hand,  equity  will  take  all  the  circumstances 
connected  with  the  breach  into  consideration,  and  will  refuse 
tne  injunction  if  these  circumstances  show  that  it  would  be 
inequitable  to  grant  it.  Thus,  in  the  matter  of  building  re- 
strictions, equity  will  not  always  interfere  for  their  protection. 
Changes  in  the  neighborhood  and  the  character  of  improvements 
may  induce  the  chancellor  to  decline  to  act;  and  the  injured 
party  must,  in  such  cases,  seek  his  redress  in  damages  at  law.'* 


iTod-Heatly  v.  Bcnham,  40  Vh. 
D.  80  (where  Harrison  v.  Good,  11 
Eq.  ;33S,  is  disapproved).  See,  also, 
Bramwell  v.  Lacy,  10  Ch.  D.  601. 

2  Kerr  on  Injunctions,  532;  High 
on  Injunctions,  §§  595,  717.  "If  the 
construction  of  the  instrument  is 
clear,  and  the  breach  clear,  then  it  is 
not  a  question  of  damages,  but  the 
mere  circumstance  of  the  breach  of 
covenant  affords  sufficient  ground  for 
the  court  to  interfere  by  injunction." 
Per  Wood,  V.  C,  in  Tipping  v.  Eck- 
ersley,  2  K.  &  J.  264,  270.  See,  also, 
St.  .Andrew's  Church's  Appeal,  67 
Pa.  518;  Leech  v.  Schweder,  L.  R. 


9  Ch.  463  (where  the  authorities  are 
reviewed);  Dickenson  v.  dr.  .(unc. 
Canal  Co.,  15  Beav.  260;  Kemp  v. 
Sober,  1  Sim.  (n.  s.)  517,  520  (one  of 
the  earliest  cases  in  which  the  doc- 
trine was  distinctly  stated);  Lord 
Manners  i'.  Johnson,  1  Ch.  D.  673; 
Asheville  Street  Ry.  v.  Asheville,  109 
N.  C.  688,  and  Kraft  v.  Welch,  112 
la.  696. 

3  Steward  v.  Winters,  4  Sandf.  Ch. 
587. 

4  Page  V.  Murray,  46  N.  J.  Eq.  325. 
Columbia  Coll.  v.  Thacher,  87  X.  Y. 
319;  Sayers  v.  CoUyor,  24  Ch.  D. 
180;  Orne  v.  Fridenberg,  143  Pa.  487; 


(i()2 


INJUXmONS. 


[part  hi. 


462.  Lumley\.  Wagner. 

The  leading  authority  upon  this  subject,  so  far  as  covenants 
to  render  personal  service  are  concerned,  is  Lumley  v.  Wagner.^ 
There  the  defendant  hatl  entered  into  an  engagement  with  the 
plaintiff  to  sing  at  his  theatre,  and  not  to  sing  at  any  other 
theatre;  and  an  injunction  was  granted  by  Lord  St.  Leonards 
restraining  her  from  singing  at  any  other  theatre.  It  was  held 
in  that  case,  overruling  the  former  decisions,-  that  the  circum- 
stances that  the  court  would  have  been  unable  to  enforce  s})e- 
cifically  the  defendant's  affirmative  covenant  to  sing,  did  not 
affect  the  complainant's  right  to  an  injunction  to  restrain  a  vio- 
lation of  the  negative  covenant;  and  this  is,  perhaps,  the  correct 
doctrine,  although  there  have  been  decisions  the  other  way.-^ 

463.  Instances  of  covenants  which  have  been  restrained. 

The  instances  in  which  injunctions  have  been  issued  to  re- 
strain the  breach  of  negative  covenants  are  very  numerous. 
Thus,  injunctions  have  been  issued  to  restrain  a  person  who 
had  entered  into  a  covenant  not  to  ring  church  bells,  from  so 
doing;"*  to  restrahi  an  author  who,  on  the  sale  of  a  work,  had 
covenanted  with  the  purchaser  not  to  do  anything  which  might 
be  detrimental  to  the  sale  or  publication  of  that  work,  from 
publishing  a  rival  work  on  the  same  subject;  ^  to  enjoin  a  clei'k 
in  a  bank  from  entering  into  the  service  of  a  rival  bank;**  to 
restrain  tenants  from  violating  covenants  in  their  leases  as  to 
Ihe  mode  of  cultivation,  or  the  removal  of  machinery,  or  not  to 
assign;^  to  restrain  the  erection  of  buildings  beyond  a  certain 


British  Museum  Case  (Duke  of  Bed- 
ford V.  Trustees  of  British  Museum), 
2  M.  &  K.  552;  Ocean  City  Associa- 
tion V.  Schurch,  57  N.  J.  Eq.  268; 
Ewertsen  v.  Gerstenberg,  186  111.  344. 
1  1  De  G.,  M.  &  G.  604.  See,  also, 
Temperton  v.  Russell  [1893],  1  Q.  B. 
715;  Manchester  Ship  Canal  Co.  v. 
Manchester  Racecourse  Co.  [1901],  2 
Ch.  51;  Singer  Sew.  Mach.  Co.  v. 
Union  Buttonhole  Co.,  1  Holmes, 
253;  Chic,  etc.,  R.  Co.  v.  N.  Y.,  L.  E. 
&  W.  R.  Co.,  24  Fed.  Rep.  516; 
Bowen  v.  Hall,  20  Am.  Law  Reg. 
587,  and  Metropolitan  Exhib.  Co.  r. 
Ward,  24  Abb.  N.  C.  393;  Harlow  r. 
Publishing  Co.,  45  Oreg.  520. 


2Kemble  v.  Kean,  6  Sim.  333; 
Kimberley  v.  Jennings,  Id.  340;  Kerr 
on  Injunctions,  528. 

••  Sanquirico  v'.  Benedetti,  1  Barb. 
315;  Hills  v.  Croll,  2  Phil.  60;  Fother- 
gill  V.  Rowland,  L.  R.  17  Eq.  132; 
Allegheny  Base  Ball  Club  v.  Bennett, 
14  Fed.  Rep.  259.  See  the  subject 
discussed  in  Xenia  Real  Estate  Co. 
V.  Macy,  147  Ind.  570. 

■*  Martin  v.  Nutkin,  2  P.  Wms.  260. 

5  Barfield  v.  Nicholson,  2  Sim.  & 
St.  1. 

6  National  Provincial  Bank  of  Eng- 
land V.  Marshall,  40  Ch.  D.  112. 

'  Fleming  v.  Snook,  5  Beav.  250; 
Grey  de  Wilton  v.  Sa.xon,  6  Yes.  lOG; 


CM.   II.] 


INJUNCTIONS. 


663 


hcigliL;  '  to  restrain  the  erection  or  compel  tlie  removal  of  bay- 
windows  ;  ^  to  restrain  the  use  of  building  lots  except  for  the 
erection  of  dwellings;  •'  to  restrain  the  carrying  on  of  particvdar 
trades  in  demised  ijioniiscs;  '  to  restrain  a  physician  from  ijrac- 
tising  his  profession  in  a  particular  vicinage;  •"'  to  enjoin  a  bai-l)cr 
from  working  as  an  employe  in  another  barber  shop,  after  he 
had  sold  out  his  own  sho{)  and  fixtures  to  the  plaintiff;  ^  to  close 
places  of  business  at  a  certain  hour'  and  in  many  other  cases 
too  numerous  to  mention.'^  The  jurisdiction  is  frequently  exer- 
cised for  the  purpose  of  enforcing  contracts  in  proper  restraint 
of  trade,^  the  principles  of  which  have  been  already  explained ; 
and  also  to  enforce  covenants  which  do  not  run  with  the  land, 
but  of  which  the  vendee  had  notice,  and  of  which  an  observance 
on  his  part  will,  therefore,  be  compelled  in  equity.^" 


Pulteney  v.  Shelton,  5  Id.  260,  n.; 
Hamilton  v.  Dunsford,  6  Ir.  Ch. 
412;  McEacharn  v.  Colton  [1902],  A. 

C.  104;  following  Lord  Cairns  in 
Doherty  v.  AUman  [1878],  3  App. 
Cas.  719-720. 

1  Lloyd  V.  London,  Chatham  and 
Dover  Ry.  Co.,  2  De  G.,  J.  &  S.  568; 
Landell  v.  Hamilton,  175  Pa.  327. 
But  the  matter  is  discretionary  with 
the  court.  Amerman  ik  Deane,  132 
N.  Y.  355. 

2  Lord  Manners  v.  Johnson,  1  Ch. 

D.  673;  Western  v.  MacDermott,  L. 
R.  1  Eq.  499. 

^St.  Andrew's  Church's  Appeal, 
67  Pa.  512;  Park  Company  v.  Van 
Dusen,  63  Ohio,  183.  Unless  the  re- 
striction has  been  abandoned.  Dun- 
can V.  Railway  Co.,  85  Ky.  525; 
Knight  V.  Simmonds  [1896],  2  Ch. 
294;  and  see  the  statement  of  the 
law  by  Lindley,  L.  J.,  on  p.  297. 
The  right  to  an  injunction,  in  such 
cases,  may  be  lost  by  acquiescence. 
German  v.  Chapman,  7  Ch.  D.  271. 

*  Kemp  V.  Sober,  1  Sim.  (n.  s.)  517; 
Hodson  V.  Coppard,  29  Beav.  4; 
Clements  v.  Welles,  L.  R.  1  Eq.  200; 
Kraft  V.  Welch,  112  la.  695;  Jolly  r. 
Brady,  127  N.  C.  142;  Parker  r. 
Whyte,  1  Hem.  &  M.  167. 


sHauser  v.  Harding,  126  N.  C. 
295;  Ryan  v.  Hamilton,  205  111.  191. 

6  Pohlman  v.  Dawson,  63  Kan.  471. 

7  Stovall  V.  McCutchen,  107  Ky. 
577. 

8  Kerr  on  Injunctions,  503,  504, 
505.  See,  also,  Wolverhampton,  etc., 
R.  Co.  V.  London,  etc.,  R.  Co.,  L.  R. 
16  Eq.  433;  Nuneaton  Local  Board 
V.  General  Sewage  Co.,  20  Id.  127; 
Lewis  V.  Gollner,  129  N.  Y.  227;  The 
Star  Brewing  Co.  v.  Primas,  163  111. 
652. 

9  Butler  V.  Burleson,  16  Vt.  176; 
McClurg's  Appeal,  58  Pa.  51;  Doty 
r.  Martin,  32  Mich.  462;  Guerand  v. 
Dandelet,  32  Md.  561;  (Jill  v.  Ferris, 
82  Mo.  156;  Diamond  M.  Co.  v.  Roe- 
ber,  35  Hun,  421;  Jones  v.  North,  L. 
R.  19  Eq.  426;  Ferris  v.  Am.  Brewing 
Co.,  155  Ind.  539;  Up  River  Ice  Co. 
V.  Denier,  114  Mich.  296;  Collins 
V.  Castle,  .36  Ch.  D.  243;  Mullis  v. 
Nichols,  105  Ga.  465;  Bradford  v. 
Furniture  Co.,  115  Tenn.  610;  South- 
ern Fire  Brick  Co.  v.  Sand  Co.,  223 
111.  616;  New  Idea  Pattern  Co.  v. 
Whitner,  215  Pa.  193. 

10  Tulk  V.  Moxhay,  11  Beav.  571;  2 
Ph.  774;  Frye  v.  Partridge,  82  111. 
267,  Bald  Eagle  Valley  R.  R.  Co.  v. 
Nittany  Valley  R.  R.  Co.,  171  Pa. 


664 


l.NJl  XCTIO.WS. 


[part  Hi. 


The  mere  fact  that  tlie  covenant  provides  for  a  penalty  upon 
its  breach  is  no  ground  for  refusing  an  injunction.^ 

404.  NegJitive  qiuility  iiiiported  into  alfirmative  covenants. 

A  negative  cjuaiity  will  sonietinies  he  imported  into  an  af- 
firmative covenant,  and  relief  afforded  hy  injunction.  Thus, 
lessees  who  had  covenanted  to  manage  land  or  cultivate  a  farm 
in  a  husband-like  manner,  have  been  restrained  from  doing  acts 
of  batl  husbanchy,  although  there  was  no  express  covenant  to 
refrain  from  such  jacts.^'  So,  if,  in  negotiations  for  the  purchase 
of  land,  the  proposed  vendor  gives  the  would-be-purchaser,  a 
"first  refusal,"  this  stipulation  involves  a  negative  contract  not 
to  part  with  the  property  without  giving  that  intending  pur- 
chaser the  '"first  refusal";  and  a  sale  to  a  third  party  without 
giving  the  prior  would-be  vendee  the  "first  refusal"  would  be 
enjoined.''  And  where  two  parties  who  were  jointly  interested 
in  land,  entered  into  an  agreement  b}'  which  one  was  to  have 
a  power  of  sale  to  be  exercised  at  such  time  as  he  might  deem 
i:)roper,  the  court  will  restrain  an  improper  exercise  of  the  power, 
and  will  specifically  carry  out  the  agreement  by  appointing  a  re- 
ceiver to  make  sales."*  But  where  the  affirmative  agreement 
cannot  be  specifically  enforced,  the  court  will  not  import  into  it  a 
negative  covenant.  Thus,  where  a  defendant  had  agreed  to 
take  notes  of  cases  in  court,  and  compose  reports  for  the  ])lain- 
tiff,  l)ut  had  failed  to  do  so,  an  injunction  to  restrain  him  fi-om 
making  reports  for  other  persons  was  refused;  ^  and  in  a  modern 


2!)");  Landell  v.  Hamilton,  17.5  Pa. 
M27.  S(>e,  also,  Clements  v.  Welles, 
I.,  i;.  1  Eq.  200;  Wilson  r.  Hart,  L. 
K.  1  (;h.  403;  Western  i\  MacDer- 
iiiott,  2  Id.  72;  Master  v.  Hansard, 
•1  Ch.  D.  718  (where  an  injunction 
Mas  refusefl);  Richards  v.  Revitt,  7 
Id.  224;  Cooke  v.  Chilcott,  3  Id.  694; 
Sayers  v.  Collyer,  24  Id.  180;  Hay- 
wood )".  Bnmswick  Building  Boc, 
S  Q.  B.  Div.  403;  Mander  v.  P^alcke 
[ISOl],  2  Ch.  557;  Spicer  ?).  Martin,  14 
App.  Cas.  24;  Brew  v.  Van  Deman, 
f)  Heisk.  433.  In  Beasley  r.  Texas  &: 
Pac.  Ry.  Co.,  191  U.  S.  492,  an  in- 
junction was  refused. 

1  Hardy  i-.  Martin,  1  Cox  Ch.  26. 


See  ante,  p.  286,  and  authorities 
cited  in  note  3.  See,  however,  Hahn 
v.  The  Concordia  Society,  42  Md.  460. 

2  Drury  v.  Molins,  6  Ves.  328;  Pratt 
r.  Brett,  2  Madd.  62;  Briggs  v.  Law, 
4  Johns.  Ch.  23;  Kerr  on  Injunc. 
522. 

3  Manchester  Ship  Canal  Co.  v. 
Manchester  Racecourse  Co.  [1901],  2 
Ch.  51. 

^  Marvine  v.  Drexel,  68  Pa.  362. 
See,  also,  Kennedy  Corporation  v. 
Kennedy,  165  N.  Y.  353,  where  a 
referee  was  appointed  to  open  and 
divide,  between  conflicting  parties, 
letters  of  a  confidential  nature. 

5  Clarke  o.  Price,  2  Wils.  C.  C.  157; 


Cll.  II.] 


INJUNCTIONS. 


0()O 


case  oi"  the  lirst  iiupoiUiiice  the  United  States  Cu'cuit  Court  of 
Appeals  for  the  Seventh  Circuit  denied  the  right  or  power  of 
fiinncery  to  compel  the  employes  of  a  railroad  company  to  re- 
nmin  in  the  sei'vice  of  the  corporation,  although  recognizing,  at 
the  same  time,  the  existence  of  a  jurisdiction  to  restrain  such 
employes  from  acts  of  destructive  trespass,  and  from  actively 
hindering  the  operation  of  the  road,  for  such  interference  would 
be  a  public  nuisance.' 

In  a  case  decided  in  1891  the  question  was  considered  in  the 
Court  of  Appeal  in  Chancery,  lAmiley  v.  Wagner  was  carefully 
examined,  and  the  groimd  upon  which  Lord  St.  Leonards  based 
his  decision  in  that  case,  viz.,  the  existence  of  an  express  negative 
covenant,  distinctly  pointed  out.  The  case  referred  to  is  Whit- 
wood  Chemical  Co.  v.  Hardman.^'  There  the  manager  of  a  manu- 
facturing company  agreed  to  give,  durmg  a  specified  term,  "the 
whole  of  his  time  to  the  company's  business."  There  was  no 
covenant,  however,  that  he  would  not  give  any  of  his  time  else- 
where ;  and  it  was  held  that  in  the  absence  of  such  a  covenant  the 
company,  no  matter  what  its  remedies  at  law  might  be,  was  not 
entitled  to  an  injunction  to  restrain  the  manager  from  giving 
his  time  to  a  rival  company.'' 


Pickering  v.  Bishop  of  Ely,  2  Y.  &  C. 
C.  C.  249;  Johnson  v.  Shrewsbury  and 
Birmingham  Ry.,  .3  De  G.,  M.  &  (i. 
1)14;  Kerr  on  Injunc.  524;  Sternberg 
V.  O'Brien,  4S  N.  J.  Eq.  .370;  Carter 
V.  Ferguson,  58  Hun,  569;  Welty  v. 
Jacobs,  171  111.  624,  6:]0.  The  dis- 
tinction between  these  cases,  and 
cases  such  as  Lumley  r.  Wagner 
(supra),  is  that  in  the  latter  the  neg- 
ative covenant  was  cxprexsed.  See 
\\  liitwood  Chemical  Co.  v.  Hard- 
man  [1891],  2  Ch.  416.  But  see 
Andrews  v.  Andrews,  81  Me.  337; 
Myers  v.  Steel  Co.,  67  N.  J.  Eq.  300; 
Cort  ('.  Lassard,  18  Oreg.  221; 
Metrop.  Exhib.  Co.  r.  Ward,  24  Ahh. 
X.  C.  393;  Bronk  r.  Riley.  50  Hun. 
489.  Where  the  contract  calls  for 
special  unique  services  equity  w'ill 
interfere.  Philadelphia  Ball  Club, 
Ltd.,  V.  Lajoie,  202  Pa.  210;  Id.  r. 
Hallman,  8  Pa.  C.  C.  Rep.  57  (pro- 


fessional baseball  players);  the  doc- 
trine that  equity  will  restrain  by 
injunction  the  breach  of  a  contract 
for  personal  services  when  the}'  are 
of  an  unique  and  extraordinary  char- 
acter held  not  to  apply  to  the  case 
of  one  agreeing  to  render  .services  for 
a  term  as  a  professional  ba.seball 
player.  American  Ba.seball  Co.  ?'. 
Harper,  54  Cent.  Law.  Jr.  449.  A 
petition  alleging  in  substance  a  high 
degree  of  proficiency  in  the  sale  of 
goods  does  not  show  such  special  or 
extraordinary  service  as  to  justify 
an  injunction  restraining  an  employe, 
who  has  broken  a  contract  of  em- 
ployment, from  engaging  in  the 
service  of  another.  Gossard  v. 
Cro.sby,  132  Iowa,  155. 

1  Arthur  v.  Oakes,  24  U.  S.  App. 
239;  In  re  Debs,  158  U.  S.  564-582. 

2  [1891]  2  Ch.  416. 

^  In    fact   the   defendant   was  en- 


6()(> 


I  N.I  UNCTIONS. 


[part  III. 


On  the  other  hand,  it  has  been  held  that  equity  will  not  issue 
an  injunction  where  the  agreement,  though  negative  in  form,  is 
affirmative  in  substance.  Therefore,  where  an  agreement  pro- 
\i(led  that  the  employer  would  not,  except  in  case  of  misconihict 
or  breach  of  the  agreenk^nt,  require  the  plaintiff  to  leave  his  em- 
ploy an  injunction  was  refused,  the  court  saying  that  the  contract 
was  equivalent  to  a  stipulation  on  th(^  part  of  the  employer  to 
keep  the  ])laintiff  in  his  enqjloy.' 

Injunctions  to  restrain  breaches  of  covenants  may,  if  the  occa- 
sions require  it,  be  of  a  mandatory  character.^ 

465.  Injunctions  in  cases  of  Corporations. 

The  last  class  of  cases  in  which  injunctions  are  granted,  which 
will  be  particularly  noticed,  embraces  those  in  which  the  writ 
is  issued  in  the  case  of  corporations. 

Many  cases  of  this  description  fall  under  the  jurisdiction  of 
equity  upon  the  subjects  of  trusts;  and  this  jurisdiction,  of 
course,  authorizes  a  Court  of  Chancery  to  interfere  wherever  the 
property  of  a  corporation  can,  under  the  conditions  of  its  corpo- 
rate birth,  be  treated  as  trust  funds,  and  there  is  an  attempt  to 
apply  the  property  to  purposes  foreign  to  the  objects  of  the 
corporation — in  other  words,  foreign  to  the  trust.  The  tlicoi  y 
upon  which  the  remedy  by  injunction  is  administered  in  such 
cases  is,  simply,  that  the  court  will  interfere  to  prevent  a  l:)r(^ach 
of  trust. '"^  Thus,  it  has  been  held  in  several  cases,  that  whert^ 
property  is  conveyed  to  a  religious  corporation  upon  the  trust, 
either  expressed  or  sufficiently  implied,  that  it  is  to  be  held  for 
the  benefit  of  a  set  of  men  holding  certain  religious  tloctrines, 
the  court  will  interfere  to  restrain  a  use  of  the  property  for  the 
benefit  of  those  who  do  not  hold  the  prescribed  doctrines,'*  and 
to  compel  a  restoration  to  the  complainants  of  the  property  in 


gaged  in  promoting  that  other  com- 
pany. The  point  that  there  was,  pei- 
haps,  a  breach  of  good  faith  which 
might  give  the  court  jurisdiction  does 
not  seem  to  have  been  made.  See, 
also,  Schivier  v.  Zitike,  136  Ind.  210, 
and  Edwards  v.  Milledgeville  Water 
Co.,  116C;a.201. 

1  Davis  V.  Foreman  [1804],   .'^  Ch. 
654. 

2  Lane  v.  Newdigate,  10  Ves.  102; 


Whittaker   v.    Howe,    3    Beav.    .383; 
Kerr  on  Injunctions,  534. 

3  See  Crandell  v.  Lincoln,  52  Conn. 
73;  Hazeltine  v.  B.  &  M.  R.  Co.,  70 
Me.  411. 

4  Schnorr's  Appeal,  67  Pa.  13S; 
Roshi's  Appeal,  60  Id.  462;  Kerr's 
Appeal,  80  Id.  07;  O'Hara  v.  Stack, 
00  Id.  477;  Watson  v.  Jones,  13  Wall. 
G79;  Hale  v.  Everett,  53  N.  H.  0; 
Chafee  v.  Quidnick  Co.,  14  R.  I.  7."); 


TH.  IT.] 


ixjrxrTioxs. 


()()7 


dispute,  and  the  exercise  of  llie  [)i'ivileges  whereof  the  defeiulaiits 
had  deprived  them.^ 

A  corporation  which  encroaches  upon  the  rights  of  property 
()!•  possession  of  another  iii;iy  l)e  restrained.  Thus  a  raih-oad 
company  may  he  enjoined  fiom  exercising  a  right  of  entry  unthw 
a  concession,  when  it  is  violating  a  condition  subject  to  which 
the  right  has  been  granted ;  -  or  from  taking  land  under  statutory 
authority  without  n)aking  the  compensation  reciuired  by  law."' 

The  ground  upon  wliich  the  jurisdiction  of  Courts  of  Chancery 
in  cases  of  injunction  to  I'estrain  corporate  action  has  been  put 
by  text-writers  of  very  considerable  authority,  is  solely  a  breach 
of  trust;"*  but  it  is  submitted,  with  deference,  that  this  view  of 
the  jurisdiction  is  somewhat  too  limited,  for  it  would  seem  that  a 
court  of  equity  would  usually  interfere  to  restrain  acts  of  corpo- 
rations ultra  vires,  when  these  acts  resulted,  or  were  likely  to 
result,  in  injury  to  the  stockholders  or  to  the  public,  without  re- 
gard to  the  question  wliether  there  had  been  a  technical  lireach 
of  trust. ^  Moreover,  it  wovdd  seem  that  corporate  acts  which 
are  wholly  without  authority  may  be  restrained  entirely  irre- 
spective of  the  consideration  of  the  question,  which  is  one  of  the 
tests  of  jurisdiction  in  ordinary  cases,  viz.,  whether  the  injuiy 
is  or  is  not  irreparable.  The  injury  innij  be  capable  of  being  com- 
})ensated  in  damages  at  law,  yet  if  it  is  the  result  of  a  wholly  un- 


Rodgprs  V.  Burnett,  108  Tenn.  17:!; 
(Jliristian  Church  v.  Carpenter,  lOS 
la.  647;  Franke  v.  Mann,  106  Wis. 
118;  High  on  Injunctions,  Chap.  V. 

1  Kisor's  Appeal,  62  Pa.  435.  See, 
also,  Kerr  v.  Trego,  47  Id.  296;  Sut- 
ter V.  The  Dutch  Church,  42  Id.  50:]; 
Gass's  Appeal,  73  Id.  47;  Henry  v. 
Deitrich,  84  Id.  292;  Baptist  Church 
V.  Jones,  79  Miss.  488;  Canadian 
Religious  Ass'n  v.  Parmenter,  ISO 
Mass.  415;  Cape  v.  Plymouth  Con- 
gregational Church,  117  Wis.  150. 

2  See  Unangst's  Appeal,  55  Pa. 
128.  See,  also,  Milhau  v.  Sharp,  28 
Barb.  228;  Evans  v.  Mo..  la.  and  Neb. 
Ry.,  64  Mo.  453;  Mclntyre  v.  Storey, 
80  111.  127  (a  bill  to  restrain  town 
officers  from  removing  plaintiff's 
fences) ;  and  Chicago,  B.  &  Q.  R.  Co. 
V.  Quincy,  136  Id.  489. 


•'  East  and  West  R.  R.  Co.  v.  East 
Tenn.,  Va.  and  Ga.  R.  Co.,  75  Ala. 
275.  See,  also,  Niemeyer  ;;.  L.  R. 
June.  Ry.,  43  Ark.  Ill;  Lake  Erie  & 
W.  Ry.  Co.  V.  Michener,  117  Ind.  465; 
Yates  V.  West  Grafton,  33  W.  Va. 
507. 

<  Kerr  on  Injunctions,  570;  High 
on  Injunctions,  $  761. 

5  Att.-Gen.  v.  Railroad  Companies, 
35  Wis.  524;  Thomas  v.  West  Jersey 
R.  Co.,  101  U.  S.  71;  Att.-Gen.  v.  The 
Central  R.  of  N.  J.,  24  Atl.  Rep.  964, 
opinion  by  Chancellor  McGill.  A 
creditor  of  a  corporation  cannot  in 
equity  attack  a  corporate  transac- 
tion upon  the  ground  that  it  is  ultra 
pi  res,  where  no  fraud  is  charged. 
Force  v.  Age-Herald  Co.,  136  Ala. 
271. 


008 


INJl  Xci'inxs. 


[I'Airr 


111. 


iiutliorized  corporate  action,  siicli  action  will  be  enjoined.'  He 
this  as  it  may,  the  equity  jurisdiction  in  the  United  States  over 
corjiorations  has  been  very  extensively  exercised.  Thus,  in 
Pennsylvania,  this  is  not  only  one  of  the  di.stinci  heads  of  juii.s- 
diction  conferred  by  statute,-  but  it  has  been  treated  as  one  of 
those  equitable  powei's  which  are  inherent  in  Courts  of  Chan- 
cer\'.-''  Bills  to  restrain  corporate  action  within  proper  limits  are, 
therefore,  very  frequent  in  the  United  Stat(^s,  and  they  are  used 
in  cases  of  corporations  of  a  numicipal  and  public  kind,  as  w(^ll 
as  those  of  a  private,  or  mercantile,  or  eleemosynary  character.^ 
The  jurisdiction  of  the  court  may,  also,  be  invoked  to  prevent 


1  Groff's  Appeal,  128  Pa.  635;  Grey 
V.  Greenville  and  Hudson  Ry.  Co.,  .59 
N.  J.  Eq.  372. 

2  See,  in  this  connection,  the  fol- 
lowing decisions  under  a  statute  in 
the  same  state  authorizing  the  courts, 
sitting  in  equity,  to  regulate  grade 
crossings  of  railways,  viz.,  the  North- 
ern Central  Ry.  Co.'s  Appeal,  103  Pa. 
621,  and  Cornwall  and  Lebanon  R. 
Co.'s  Appeal,  125  Id.  245. 

3  See  Commonwealth  v.  The  Bank 
of  Pennsylvania,  3  W.  &  S.  193; 
Baptist  Church  v.  Scannel,  3  Gr.  Cas. 
48;  Sawer  r.  Gosser,  1  W.  N.  C.  55; 
SterHng's  Appeal.  Ill  Pa.  41;  Ken- 
on  Receivers,  SO,  note  1  (2d  Am.  ed.). 

■<  See  Delaware  and  Raritan  Canal 
V,  Raritan  and  Delaware  Bay  R. 
Co.,  16  X.J.  Eq.  378;  Newark  Plank 
Road  Co.  r.  Elmer,  9  Id.  754;  Kean 
V.  Johnson,  Id.  401;  Gifford  r.  The 
New  Jersey  R.  Co.,  10  Id.  171; 
Schwarzwaelder  v.  German  Mut.  Fire 
Ins.  Co.,  59  Id.  589;  Id.  v.  Tegen,  58 
Id.  319;  Pronick  r.  Spirits  Distribut- 
ing Co.,  Id.  97;  People  v.  New  York, 
.32  Barb.  102;  Scofield  v.  Eighth 
School  Dist.,  27  Conn.  499;  Sheldon 
V.  Centre  School  Dist.,  25  Id.  224; 
Commonwealth  i-.  Bank,  4  Allen,  1; 
Durfee  v.  Old  Colony  R.  Co.,  5  Id. 
230;  Peabody  v.  Flint,  6  Id.  52; 
-Matthews  v.  Skinker,  62  Mo.  329; 
March  v.  Eastern  R.  Co.,  40  X.  H. 


548;  Philadelphia  and  Erie  R.  Co. 
r.  Catawissa  R.  Co.,  53  Pa.  20;  W'iiie- 
brenner  i\  Colder,  43  Id.  214;  Mun- 
derson  v.  Commercial  Bank,  28  Iil. 
379;  Houston  v.  Jefferson  College,  6.3 
Id.  428;  Sturges  v.  Knapp,  31  Vt. 
1;  Stevens  v.  Rutland  and  Burling- 
ton R.  Co.,  29  Id.  545;  Nazro  /■. 
Merchants'  Ins.  Co.,  14  Wis.  295; 
Curtenius  r.  Hoj-t,  37  Mich.  5S:!; 
Grand  Trunk  Railway  ;-.  Cook,  2!) 
111.  237;  Carter  v.  City  of  Chicago,  57 
Id.  283;  Cobb  v.  Illinois  and  St.  Louis 
R.  Co.,  68  Id.  233;  Dodge  v.  Wool.sey, 
18  How.  .341;  Ga.  Nor.  Ry.  Co.  v. 
Tifton,  etc.,  Ry.  Co.,  109  Ga.  7i;2; 
Mayor  of  Macon  r.  Hughes,  110  Id. 
795;  Birmingham  Traction  Co.  r. 
Sou.  Bell  Tel.  Co.,  119  Ala.  144; 
Bristol,  etc.,  Co.  ?'.  Bristol,  97  Va. 
304;  .Mayor  of  Americus  r.  Perry, 
114  Ga.  871.  See,  al.so,  Colmaii  r. 
Eastern  Counties  Railway  Co.,  10 
Beav.  1;  Simpson  v.  The  Hotel  Co.,  S 
H.  L.  Cas.  712.  A  court  of  equity 
will  direct  an  account  to  be  taken  of 
corporate  debts,  and  the  amounts  re- 
spectively due  by  shareholders  on 
assessments  to  be  ascertained — this 
to  prevent  a  multiplicity  of  suits,  and 
in  lieu  of  proceedings  by  mandamus 
to  compel  directors  to  make  calls. 
Dalton,  etc.,  R.  Co.  i-.  McDonald,  .56 
Ga.  191.  Courts  of  equitj'  have  no 
power  to  prohibit  by  injunction  the 


CH.  II.] 


IN.Il'NCTIOXS. 


669 


the  franchise  of  a  corporation  tVoiii  being;  destroyed;  ^  but  not  to 
decree  a  dissokition,  at  the  suit  of  a  shareholder.^ 

A  corporation,  however,  cannot  he  compelled  to  perform  a 
public  duty  at  the  suit  of  a  i)rivatc  individual,  without  some 
special  right  or  authority.^ 

In  leaving  the  subject  of  injunctions,  it  should  be  remembei'ed 
that  the  examples  given  of  the  application  of  this  ecjuitable 
remedy  to  the  cases  which  have  been  discussed,  are,  after  all, 
only  illustrations  of  the  jurisdiction,  and  are  not  to  be  regarded 
as  an  exhaustive  catalogue  of  all  the  cases  in  which  this  remedy 
can  be  applied.  The  field  of  this  jurisdiction  is  an  exceedingly 
wide  one,  and  scarcely  any  injury  to  the  rights  of  property  can  be 
imagined  where  the  writ  would  not  issue,  if  the  remedy  at  law 
was  inadequate,  and  the  only  efficient  redress  would  be  the 
restraint  of  the  commission  or  continuairce  of  the  wrongful  act. 

But  it  is  the  rights  of  property  or  rather  rights  in  property 
that  equity  interferes  to  protect.  A  party  is  not  entitled  to  a 
writ  of  injunction  for  a  matter  affecting  his  person;''  and  this 
doctrine  has  been  carried  to  the  extent  of  holding  that  where  the 


acts  of  legislative  bodies  of  municipal 
corporations,  legislative  in  their  char- 
acter, or  which  involve  the  exer- 
cise of  a  discretion,  where  the  only 
ground  upon  which  it  is  attempted 
to  control  these  functions  in  advance 
is  one  of  expediency.  Tebbetts  v. 
People,  31  Colo.  461. 

1  Osborn  r.  Bank  of  the  United 
States,  9  Wheat.  738;  Union  Water 
('o.  V.  Kean,  52  N.  J.  Eq.  111. 

2  Republican  Mountain  Silver  Mines 
r.  Brown,  19  U.  S.  App.  203. 

•'  Buck  Mountain  Co.  v.  Lehigh 
Co.,  50  Pa.  91;  Saylor  r.  Penna.  Can. 
Co.,  183  Id.  172.  Upon  the  gen- 
eral subject  of  the  jurisdiction  of 
equity  by  way  of  injunction  over 
companies  and  corporations,  see 
Redfield  on  Railways,  325;  Kerr  on 
Injunctions,  Chaps.  XXIIT.  and 
XXIV.,  and  High  on  Injunctions, 
Chaps.  V.  andXIII. 

'See  Att.-Gen.  r.  Slu-fheld  Cas 
Co.,  3  De  C,  M.  &  (1.  :;2();  Emperor 
of  Austria  v.  Day,  3  De  C,  F.  &  J. 


217;  Rigby  r.  Connol,  14  Ch.  D.  482; 
Fletcher  v.  Tuttle,  151  111.  41; 
World's  Columbian  Exposition  Case, 
18  U.  S.  App.  42;  Kearns  v.  Howley, 
188  Pa.  120;  Wellenvoss  v.  Crand 
Lodge,  103  Ky.  415;  Atkinson  v. 
Doherty,  121  Mich.  372;  Roberson  i\ 
Rochester  P'olding  Box  Co.,  171  N.  Y. 
538;  People  ex  rel.  L'Abbe  v.  Dist. 
Court,  26  Colo.  386;  State  i'.  O'Leary, 
155  Ind.  526;  O'Brien  v.  Harris,  105 
Ga.  732;  State  v.  Zachritz,  166  Mo. 
307;  though  see  Schuyler  v.  Curtis, 
147  N.  Y.  434;  Pavesich  v.  New  Eng- 
kuul  Life  Ins.  Co.,  122  Cia.  190; 
Itzkovitch  /'.  Whitaker,  117  La.  708, 
and  Pollard  v.  Photographic  Society, 
40  Ch.  D.  345.  Con.sider  White  v. 
Melhn  [1895],  A.  C.  154,  where  the 
rule  was  stated  to  be  that  no  action 
will  lie  where  damage  is  not  proved 
and  that  whore  no  action  will  lie  an 
injunction  will  not  issue.  A  court  of 
(■(juity  w  ill  not  interfere  by  inj miction 
to  lestrain  a  criminal  prosecution. 
Inglis  V.  Freeman,  137  Ala.  298. 


G7() 


JX.Il  .\( TIONS. 


[part    III. 


ijist  of  the  injury  is  purely  personal  (as  for  instance  in  cases  of 
libel)  the  fact  that  it  may  be  injurious  to  property  does  not  give 
the  court  jurisdiction.  This  was  distinctly  stated  by  Justice 
Gray,  then  Chief  Justice  of  Massachusetts,  in  the  following  lan- 
guage: "The  jurisdiction  of  a  Court  of  Chancery  does  not  extend 
to  cases  of  libel  or  slander  or  false  i-epresentations  as  to  the 
character  or  quality  of  the  plaintiff's  property  or  as  to  his  title 
thereto  which  involve  no  breach  of  trust  or  of  contract."  ^ 


'  Boston  Diatite  Co.  ?\  Florence 
Mfg.  Co.,  114  Mass.  70.  See,  also, 
Marlin  Firearms  Co.  v.  Shields,  171 
N.  Y.  384;  Mayer  v.  Journeymen 
Stone  Cutters'  Ass'n,  47  N.  J.Eq.  519; 
Whitehead  v.  Kitson,  119  Mass.  484; 
Worthington  v.  Waring,  157  Id.  421; 
Prudential  Assurance  Co.  v.  Knott, 
L.  R.  10  Ch.  142;  Walter  v.  Ashton 
[1902],  2  Ch.  292;  Singer  Mfg.  Co. 
V.  Domestic  Sewing  Mach.  Co.,  49 
Ga.  70;  Life  Ass'n  of  America  v. 
Boogher,  3  Mo.  App.  173;  Kidd  v. 
Horry,  18  W.  N.  C.  287;  28  Fed. 
Rep.  773;  Baltimore  Life  Ins.  Co.  v. 
Gleisner,  202  Pa.  386;  but  in  Casey 
r.  Cincinnati  Typographical  Union, 
45  Fed.  Rep.  135,  the  publication  of 
boycotting  circulars  was  enjoined. 
Tn  Toppin  v.  Moriarty,  59  N.  J.  Eq. 
115,  it  is  said  that  a  question  in- 
volving the  care  and  custody  of  a 
dead  body  must  necessarily  bo  de- 
cided in  equity  for  there  is  no  prop- 


erty right  in  a  dead  body.  Courts  of 
equity  have  jurisdiction  of  settle- 
ment of  controversies  as  to  the 
burial  of  the  dead,  the  care  of  their 
remains  after  burial  and  the  preser- 
vation of  the  place  of  interment  from 
wanton  violation  or  unnecessary  des- 
ecration; but  where  no  trace  of  a 
dead  body  was  discovered  when  a 
grave  was  reopened,  but  the  earth  in 
which  it  was  buried  was  removed  to 
a  new  location,  a  decree  that  the  re- 
mains be  restored  to  their  original 
place  of  interment  would  be  futile 
and  cannot  properly  be  made.  Wil- 
son V.  Read,  74  N.  H.  322.  Where 
land  is  set  apart  by  the  owner  for  a 
burial  place  and  used  for  many 
years  with  his  consent  for  such  pur- 
pose, a  court  of  equity  will  enjoin 
liim  and  those  claiming  under  him 
from  defacing  or  meddling  with  the 
graves.  Wormley  v.  Wormley,  207 
111.  411. 


C'H.  ill. J 


RE-EXEC UTIUN,    REFORMATION,    ETC. 


671 


CHAPTER  III. 


RE-EXECUTION,    REFORMATION,    RESCISSION,    AND    CANCELLATION. 


466.  Reason    for    the    existence    of 

these  equitable  remedies. 

467.  Re-execution. 

468.  Reformation. 

469.  General  principles  in  such  cases. 

470.  Admissibility  of  parol  evidence. 
Reformation  under  presumption 

of  law. 
Rescission;   voidable  contracts, 
how  far  good. 
473.  Cancellation  as  applied  in  the 


471. 


472. 


rescission  of  voidable  con- 
tracts. 

474.  Cancellation  independent  of  re- 
scission. 

47.5.  Relief  by  rescission  and  cancel- 
lation a  matter  of  judicial  dis- 
cretion. 

476.  Compensation. 

477.  Rule    in    England;    Sir    Hugh 

Cairns's  Act. 

478.  No  uniform  rule  on  this  subject 

in  the  United  States. 


466.  Reason  for  the  existence  of  these  equitable  reme- 
dies. 

It  has  been  stated  in  a  former  chapter  that  in  order  to  render 
the  circle  of  equitable  relief,  in  the  case  of  contracts  and  duties, 
complete,  it  is  necessary  that  not  only  should  a  suitor  in  chancery 
obtain  redress  l:)y  virtue  of  bills  for  specific  performance  and  in- 
junction, but  that  there  should  also  exist  some  remedy  by  means 
of  which  a  lost  writing  may  be  supplied,  an  instrument  which 
has  been  erroneously  framed  corrected,  and  documents  obtained 
through  fraud  or  duress  surrendered.  Hence,  there  arises  the 
necessity  for  bills  for  Re-execution,  Reformation,  Rescission  and 
Cancellation,  which  may  be  appropriately  considered  immedi- 
ately after  the  subjects  of  the  two  preceding  chapters. 

467.  Re-execution. 

The  remedy  of  Re-execution  is  applicable  to  cases  in  which 
deeds  oi-  othci-  instruments  are  lost  or  destroyed;  and  is  the 
method  by  which  (■(juitics  growing  out  of  accident  are  some- 
times enforced.  \vv\  frcciucntly,  in  cases  of  accident,  the  re- 
dress which  a  party  seeks  is  not  only  that  the  lost  instrument 


072  RE-EX  EC  UTIOX,    HEFOKM  A  TIOX,    ETC.  [PAFM'  HI. 

shall  be  re-executed,  but  that  further  ivlief  .sliall  be  aduiinistercd 
by  directing  a  performance  on  the  part  of  the  defendant  of  the 
duty  for  which  he  was  bound  by  the  instrument,  and  for  the 
non-performance  of  which,  were  it  not  for  the  loss,  he  could 
have  been  held  answerable  in  a  common-law  action.  Thus,  in 
former  times,  and  when  the  strictness  of  the  common-law  rule 
in  regard  to  profert  had  not  been  relaxed/  the  relief  in  equity 
in  the  case  of  a  lost  bond  extended  not  only  to  re-execution, 
but  also,  for  the  purpose  of  avoiding  circuity  of  action,  to  a 
decree  for  the  payment  of  the  debt.^  In  such  a  case  (it  wnll  be 
observed)  the  object  of  the  complainant  is  to  obtain  a  payment 
of  the  money  due  upon  the  bond,  to  accomplish  which  he  was 
originally  compelled  to  resort  to  equity  in  consequence  of  a  rule 
of  }:)leading  which  prevented  his  recovery  in  a  common-law  ac- 
tion. Here,  therefore,  the  ultimate  relief  sought  is  not  re- 
execution,  but  payment. 

But  cases  may  sometimes  arise  in  which  re-execution  is  the 
))rincipal  or  only  redress  which  is  required;  and  here  the  equi- 
table remedy  now  under  consideration  is  particularly  called 
into  play.  An  illustration  of  the  necessity  for  this  remedy  maj'' 
be  found  in  those  cases  in  which  a  deed  has  been  lost,  and  a 
title  is,  therefore,  in  danger  of  being  rendered  unmarketable  by 
the  absence  of  one  of  the  hnks  in  the  chain.  Thus,  if  a  convey- 
ance to  a  purchaser  has  accidentally  been  burned,  the  seller  will 
be  compelled  upon  a  resale  to  join  in  a  conveyance  to  the  new 
purchaser,  or  if  the  estate  be  not  resold,  to  again  convey  to  the 
first  purchaser.^  In  a  case  of  this  kind  the  interposition  of  the 
chancellor  is  sought  solely  upon  the  ground  of  the  efficiency  of 
the  equitable  remedy,  and  no  relief  is  asked  for  beyond  the  simple 
re-execution  of  the  lost  or  spoliated  instrument.  Of  course,  in 
applying  this  remedy  the  court  will  act  in  obedience  to  the  gen- 
eral principles  by  which  its  interposition  is  usually  regulated; 
and,  as  one  of  those  principles  consists  in  the  discouragement  of 
carelessness  or  negligence,  a  decree  may  be  refused  if  the  loss  or 
destruction  of  the  instrument  has  happened  through  the  fault 
of  the  complainant.'* 

1  Ante,  pp.  280,  281.  Sug.  V.  &  P.  41  (8th  Am.  ed.);  King 

2  Adams's  Eq.  1(37.  v.  Pillow,  90  Tenn.  287. 

3  Bennett  r.  Ingoldsby,  Finch,  262.  *  See   Hoddy   v.   Hoard,   2   Carter 
See  Cummings  v.  Coe,   10  Cal.  529;  (Ind.),  474. 

Niles  V.   Graham,    181   Mass.   41;   2 


CH.  III.] 


RE-f]XECLT10X,    REFORMATION,    ETC. 


673 


468.  Reformation. 

The  remedy  of  Reformation  is  obviously  one  which  is  neces- 
sary to  the  complete  and  exact  administration  of  justice,  and 
which,  moreover,  can  be  attained  by  equitable  procedure  alone. ^ 
A  court  of  law  may  construe  and  enforce  an  instrument  as  it 
stands,'  or  may  refuse,  upon  proper  cause  shown,  to  give  any 
effect  to  it,  or  may  treat  it  as  a  nullity.  But  it  is  plain  that  if 
the  instrument  has  not  been  drawn  so  as  to  express  the  true  in- 
tention of  the  parties,  to  enforce  it  in  its  existing  condition 
would  be  simply  to  carry  out  the  very  mistake  or  fraud  com- 
plained of;  while  to  set  it  aside  altogether  might  deprive  the 
plaintiff  of  the  advantages  of  a  contract  to  which  he  is  lawfully 
entitled.  It  is  obvious,  therefore,  that  the  only  true  measure 
of  justice  in  such  a  case  is  the  equitable  remedy  by  reformation 
(or  correction,  as  it  is  sometimes  called),"  by  means  of  which  the 
instrument  is  made  to  conform  to  the  intention  of  the  parties, 
and  is  then  enforced  in  its  corrected  shape. ^ 

It  need  scarcely  be  added  (parenthetically),  that  while  equity 
has  and  exercises  in  proper  cases,  the  power  to  reform,  it  has  no 
power  to  make  a  new  contract.  A  Court  of  Chancery  cannot 
(for  example)  change  an  agreement  between  A.  and  B.,  into  one 
between  A.  and  C."* 

The  occasions  which  most  frequently  give  rise  to  this  equi- 
table remedy  are  cases  of  mistake  and  fraud.  Thus,  where  a 
settlement  is  executed  with  the  design  of  carrying  out  prior 
articles,  but  which  is  so  drawn  by  mistake  that  it  fails  to  con- 
form to  the  intention  as  expressed  in  the  articles,  a  bill  in  equity 
will  lie  for  the  purpose  of  reforming  the  instrument  so  that  the 
original  intention  of  the  parties  to  the  settlement  may  not  be 
defeated.^    In  like  manner,  policies  of  insurance  have  been  re- 


1  Equity  has  no  power  to  reform 
the  deed  of  a.  feme  covert,  since  her  ac- 
knowledgment is  an  essential  part  of 
the  execution.  Montana  Nat.  Bank 
r.  Schmidt,  6  Mont.  609. 

-  The  mere  construction  of  a  deed, 
wliere  there  is  no  fraud,  accident,  or 
mistake,  is  not  a  proper  subject  of 
jurisdiction  in  equity.  Grubb's  Ap- 
peal, 90  Pa.  228. 

3Cubberly  v.  Cubberly,  39  N.  J. 
Eq.  514;  Bowden  v.  Bland,  53  Ark. 
53;    Hale    v.    Young,    24    Neb.    464; 

43 


Nebraska  L.  &  T.  Co.  v.  Ignowski, 
54  Id.  398;  Manatt  v.  Starr,  72  la. 
677;  C.reene  r.  Dickson,  119  Ala.  346. 
It  is  not  essential  that  formal  refor- 
mation of  the  writing  be  had  before 
enforcement  will  be  ordered  of  the 
contract  as  the  court  finds  it  should 
have  been  made.  Huber  Mfg.  Co.  v. 
Claudel,  71  Kan.  441. 

4  Mabb  V.  Merriam,  129  Cal.  663. 

5  Glenorchy  i'.  Bo.sville,  1  Lead. 
Cas.  Eq.  20,  and  notes;  Perry  on 
Trusts,  §  359,  anie,  §  57. 


674 


RE-EXECUTION,    REFORMATION,    ETC.  [PART  III. 


formed  where,  through  inadvertence,  accident,  or  mistake,  the 
terms  of  the  policy  have  not  been  properly  set  forth. ^  And  so 
where,  through  artifice,  the  written  evidence  of  a  contract  is 
ilrawn  in  such  way  that  the  terms  of  the  agreement  are  not  ac- 
curately expressed,  the  party  injured  by  the  fraud  may  come 
into  etjuity  for  the  purpose  of  having  the  instrument  corrected, 
and  the  contract,  as  reformed,  enforced. 

Bills  which  seek  to  have  absolute  deeds  declared  to  be  mort- 
gages, and  for  the  consec^uent  enforcement  of  the  mortgagor's 
equity  of  redemption,  are  illustrations  of  this  species  of  reforma- 
tion.- 


469.  General  principles  in  such  cases. 

The  nature  of  mistake  and  fraud  has  been  attempted  to  be 
explained  in  former  chapters.  What  we  have  to  do  with  now 
is  the  method  in  which  the  court  applies  the  equitable  remedy 
of  reformation,  for  the  purpose  of  redressing  injuries  growing 
out  of  mistake  or  fraud. 

The  general  principles  by  which  the  court  is  guided  in  such 
cases  are  well  settled.  A  person  who  seeks  to  rectify  a  deed  on 
the  ground  of  mistake  must  establish,  in  the  clearest  and  most 
satisfactory  manner,  that  the  alleged  intention  to  which  he 
desires  it  to  be  made  conformable  continued  concurrently,  in 
the  minds  of  all  parties,  down  to  the  time  of  its  execution;  and, 
also,  must  be  able  to  show  exactly  and  precisely  the  form  to  which 
the  deed  ought  to  be  brought.^ 

To  reform  a  contract,  and  then  enforce  it  in  its  new  shape, 
calls  for  a  much  greater  exercise  of  the  power  of  a  chancellor 
than  simply  to  set  the  transaction  aside.  Reformation  is  a  nuich 
more  delicate  remedy  than  rescission.    Hence,  in  order  to  justify 


1  Snoll  r.  Insurance  Co.,  98  U.  S. 
85,  and  Thompson  v.  Ins.  Co.,  136  Id. 
296. 

2  See  ante,  chapter  on  Mortgages. 

•»  By  the  Lord  Chancellor  in  Fow  ler 
V.  Fowler,  4  De  G.  &  J.  265;  and  by 
Gray,  Circuit  Judge,  in  Fulton  v. 
Colwoll,  50  C.  C.  A.  537.  See,  also, 
Stockbridge  Iron  Co.  r.  Hudson  Iron 
Co.,  107  Mass.  290;  Hollenback's 
App.,  121  Pa.  322;  Schwass  i'. 
Hershey,  125  111.  653;  Fudge  v. 
Payne,  86  Va.  303;  Bodwell  v.  Hea- 


ton,  40  Kan.  36;  Christopher  St. 
R.  R.  Co.  V.  Twenty-third  St.  R.  R. 
Co.,  149  N.  Y.  57;  Ordway  v.  Chace, 
57  N.  J.  Eq.  478;  Nebraska  L.  & 
T.  Co.  r.  Ignowski,  54  Neb.  398. 
The  mistake  need  not  be  proved  be- 
yond a  reasonable  doubt.  Southard 
r'.  Curley,  134  N.  Y.  148;  Sullivan 
V.  Moorhead,  99  Cal.  157;  Miller  v. 
Morris,  123  Ala.  164;  Topping  v. 
Jeanette,  64  Neb.  834;  Southern 
Warehouse  Co.  v.  Ozment,  132 
N.  C.  839. 


CH.  III.]  RE-EXECUTION,    REFORMATION,    ETC.  675 

a  decree  for  reformation  in  cases  of  pure  mistake,  it  is  necessary 
that  the  mistake  should  have  been  mutual.^  Where  the  mistake 
has  been  on  one  side  only,  the  utmost  that  the  party  desiring 
relief  can  obtain  is  rescission,  not  reformation.-  The  case  is,  of 
course,  different  if  any  element  of  fraud  exists;  for  it  has  been 
properly  held  that  where  there  is  a  mistake  on  one  side,  and  fraud 
on  the  other,  there  is  a  case  for  reformation. •'' 

470.  Admissibility  of  parol  evidence. 

The  difficulties  which  arise  in  these  cases  grow,  principally, 
out  of  questions  of  evidence.  Where  the  instrument  recites  an 
agreement  which  it  professes  to  carry  out,  but  fails  to  do  so,  the 
case  for  reformation  is  perfectly  clear;  but  where  there  is  no 
recital  of  any  prior  agreement,  but  the  alleged  mistake  is  at- 
tempted to  be  proved  by  extrinsic  evidence,  the  limits  of  the 
equity  for  correction  are  more  difficult  to  define.''  The  distinc- 
tion which  ought  to  be  borne  in  mind  seems  to  be  between  those 
cases  in  which  the  intention  of  the  parties  has  not  been  ac- 
curately expressed,  and  those  in  which  the  intention,  though 
accurately  expressed,  has  been  reached  through  some  misap- 
prehension or  ignorance.^  In  the  first  class  of  cases  the  true 
remedy  is  reformation,  and  evidence  is  admissible  to  show  what 
the  intention  of  the  parties  really  was.  Thus,  to  refer  to  an  in- 
stance cited  in  a  former  chapter,  if  there  is  an  agreement  that 
part  of  the  purchase-money  of  certain  real  estate  should  be 
paid  by  a  judgment  note  for  a  certain  sum,  "with  interest,"  and 
these  words  are  omitted  from  the  note  by  mistake,  it  is  com- 
petent to  show  this  omission  by  parol  evidence  for  the  purpose 
of  obtaining  a  decree  correcting  the  instrument.''    The  general 


^  Ante,  pp.  §  191,  and  cases  cited 
in  the  notes.  Andrews  v.  Andrews, 
SI  Me.  337;  Stewart  v.  Gordon, 
60  Ohio,  170.  Equity  will  reform 
a  lease  where  it  is  clearly  and 
satisfactorily  shown  that  the  in- 
strument fails  to  express  the  mutual 
understanding  of  the  parties  when 
given  a  legal  construction  though  in 
language  selected  by  themselves. 
Brown  ?'.  Ward,  119  la.  604;  Coppes 
V.  Keystone  Paint  Co.,  36  Pa.  Sup.  3S. 

2  Bellows  v.  Stone,  14  N.  H.  17"); 
Cooper  V.  The  Farmers'  Ins.  Co.,  50 


Pa.  299;  Douglass  v.  Grant,  12  111. 
App.  273;  Stewart  v.  Gordon,  60 
Ohio,  170;  but  see  Born  v.  Schren- 
keiscn,  110  N.  Y.  55;  Quigglc  v. 
Vining,  125  Ga.  98;  Venable  v.  Bur- 
ton, 129  Ga.  537. 

3  Welles  V.  Yates,  44  N.  Y.  525; 
Hitchons  r.  Pettingill,  58  N.  H.  3S6; 
Cook  V.  Liston,  192  Pa.  19. 

4  Adams's  Eq.  169.  See  Bold  v. 
Hutchinson,  5  De  G.,  M.  &  G.  558, 
568;  2  Spence's  Eq.  140,  141. 

5  See  ante,  p.  298. 

6  Gump's  Appeal,  65  Pa.  476;  and 


670  RE-EXECUTIOK,    REFORMATION,    ETC.  [PART  III. 

principle,  therefore,  that  where  no  statutory  provision  inter- 
venes, parol  evidence  is  admissible  for  the  purpose  of  correcting 
a  mistake  in  a  written  instrument,  and  of  carrying  it  into  effect 
as  corrected  (in  other  words,  for  the  purpose  of  applying  the 
e(iuitable  remedy  of  j-eformation),  has  been  adopted  by  many 
decisions  throughout  the  United  States;  but  relief  will  be  granted 
only  where  there  is  a  plain  mistake  clearly  made  out  by  satis- 
factory proofs.^  The  same  residt  now  seems  to  have  been  reached 
in  England;  although  there  is  great  reluctance  to  admit  j)arol 
testimony  unless  it  is  corroborated  by  other  evidence.^  And  on 
both  sides  of  the  Atlantic  it  now  seems  to  be  established  that 
the  courts  may,  under  certain  circumstances,  and  when  the  [)arol 
evidence  is  very  conclusive,  grant  the  relief  sought,  even  though 
the  mistake  is  denied  by  the  answer  of  the  defendant.'' 

Where  the  Statute  of  Frauds  intervenes,  the  admissibility  of 
I)arol  evidence  is  necessarily  attended  with  greater  difficulty. 
The  power  to  reform  is  to  be  exercised  with  great  caution,  to 
avoid  infringing  upon  the  statute."  The  authorities  upon  this 
subject  have  already  been  noticed  in  the  chapter  on  Specific  Per- 
formance; it  will,  consequently,  be  sufficient  to  refer  to  the  con- 
clusion there  stated  .'"^ 


sec  the  other  cases  cited,  ante,  p.  298, 
note  5,  and  p.  300,  note  1 ;  March  v. 
McNair,  48  Hun,  117;  Stelpflug  r. 
Wolfe,  127  la.  192. 

1  See  Gillespie  v.  Moon,  2  Johns. 
Ch.  595;  Lyman  r.  Little,  15  Vt. 
57<i;  Whitney  v.  Whitney,  5  Dana, 
'.i'M);  Stockbridge  Iron  Co.  v.  Hudson 
Iron  Co.,  107  Ma.ss.  290;  Cummins  v. 
Balgin,  :}7  N.  J.  Eq.  476;  1  Hug.  V. 
&  P.  2r)2  (Sth  Am.  ed.);  notes  to 
Woollam  r.  Ileain,  2  Lead.  Cas.  Eq. 
{J8:j  (:}d  Am.  ed.);  Whart.  on  Ev. 
§§  1019  et  seq.  (where  the  subject  is 
thoroughly  discussed  and  the  author- 
ities collected);  ante,  §  258.  See  Lake 
Shore  &  M.  S.  Ry.  Co.  r.  Richards, 
126  111.  US;  Tiu-ner  r.  Shaw,  96 
Mo.  22;  Roundy  r.  Kent,  75  la.  662; 
Stewart  v.  Gordon,  60  Ohio,  170; 
Byrne  v.  Nat.  Bank,  1  Ind.  Ter. 
680. 

2  See  Alexander   l\  Ciosbic,   LI.  «fc 


G.  (temp.  Sug.)  145;  Mortimer  v. 
Shortall,  2  Dr.  &  War.  :?6.'5;  Kerr  on 
Fraud  and  Mistake,  42:];  1  Sug.  V. 
&  P.  262  (8th  Am.  ed.). 

3  Fowler  v.  Fowler,  4  Dc  G.  &  J. 
273;  Gray  ?■.  Woods,  4  Blackf.  432. 
See,  also,  the  cases  cited  in  tlie  two 
preceding  notes;  and  Kerr  on  Fraud 
and  Mistake,  and  Sug.  ^'.  &  P.,   id 

SI)  p. 

■»  Per  Mitchell,  .1.,  in  Baab  v. 
llouser,  203  Pa.  473. 

0  See  ante,  §§  381  et  seq.  This  sub- 
ject was  elaborately  examined  in  the 
case  of  Glass  r.  Hulbert,  102  Mass. 
31,  where  the  rule  was  said  to  be  that 
"  when  the  projiosod  reformation  of 
an  instrument  inxobcs  the  specific 
performance  of  an  oral  agreement 
within  the  Statute  of  Frauds,  or  when 
the  term  sought  to  be  added  would  .'iO 
modify  the  instrument  as  to  make  it 
operate  to  convey  an  interest  or  sc- 


CH.  III.] 


RE-EXECUTIOX,    REFORMATION,    ETC. 


{)77 


In  cases  of  fraud  there  is  less  reluctance  to  admit  parol  evi- 
dence for  the  purpose  of  reforming  a  written  contract  than  in 
cases  of  bald  mistake. 

Thus,  it  was  said  in  a  former  chapter  that  parol  evidence  was 
admissible  for  the  purpose  of  showing  that  a  deed  absolute  on 
its  face  was  intended  to  he  a  mortgage,  and,  therefore,  that  the 
grantor  should  be  entitled  to  avail  himself  of  his  equity  of  re- 
demption.' This  is  the  rule  in  most  of  the  states  of  the  Union ;  - 
but  in  Massachusetts,  Maine,  Connecticut,  New  Hampshire, 
and  perhaps  some  other  states,  parol  evidence,  in  such  cases, 
seems  to  have  been  considered  inadmissible;*''  although  in  some 
of  these  states  the  question  cannot,  perhaps,  be  considered  as 
definitely  decided.^ 


471.  Reforiiiatioii  under  presuniptioii  of  law. 

In  addition  to  reforming  instruments  by  direct  evidence,  in 
cases  of  fraud  or  mistake,  correction  will  be  sometimes  made 
by  presumption  of  law,  or  rather  of  equity. '"^  Thus,  where  a 
joint  and  several  debt  exists,  and  a  bond  is  afterwards  given  to 
secure  the  same  which  is  drawn  in  such  a  way  as  to  make  the 
obligation  merely  joint,  and  not  joint  and  several,  equity  will 
reform  the  instrument  upon  the  presumption  that  the  writing 
by  W'hich  the  debt  was  to  be  secured  was  intended  to  follow  in 


cure  a  right,  which  can  only  be  con- 
veyed or  secured  through  an  instru- 
ment in  writing,  and  for  which  no 
writing  has  ever  existed,  the  Statute 
of  Frauds  is  a  suflRcient  answer  to 
such  a  proceeding,  unless  ■  the  plea 
of  the  statute  can  be  met  by  some 
ground  of  estoppel  to  deprive  the 
party  of  the  right  to  set  up  that  de- 
fence ■'  (citing  Jordan  r.  Sawkins,  1 
Ves.  Jr.  402;  Osborn  r.  Phelps,  19 
Conn.  Go;  Clinan  v.  Cooke,  1  Sch.  & 
Lef.  22);  but  that  "a  rectification,  by 
making  the  contract  include  obliga- 
tions or  subject-matter,  to  which  its 
written  terms  will  not  apply,  is  a  di- 
rect enforcement  of  the  oral  agree- 
ment, as  much  in  conflict  with  the 
Statute  of  Frauds  as  if  there  were  no 
writing  at  all."  See.  also,  article  in 
24  Am.  Law  Reg.  SI;  Noel's  Ex'r  v. 


Gill,  84  Ky.  241;  Olson  v.  Erickson, 
42  Minn.  440. 

1  Ante,  §  155. 

2  Russell  ('.  Southard,  12  How. 
138;  Morgan  v.  Shinn,  15  Wall.  105; 
Marks  v.  Pell,  1  Johns.  Ch.  594;  Horn 
V.  Keteltas,  46  N.  Y.  1505;  Sweet  v. 
Parker,  22  \.  J.  Eq.  453;  Odenbaugh 
V.  Bradford,  67  Pa.  96;  Maffitt's 
Adm'r  r.  Rynd,  69  Id.  o87;  Conner 
r.  Chase,  15  Vt.  764;  Bank  of  West- 
minster V.  Whyte,  1  Md.  Ch.  536; 
3  Id.  508;  Webb  v.  Rice,  6  Hill, 
219;  Conwell  v.  Evill,  4  Blackf.  67; 
Sug.  V.  &  P.  267,  note;  2  Wash. 
Real  Prop.  50  et  seq.;  ante,  p.  244, 
note  2. 

^Sug.  V.  &  P.  267,  note. 
*  Newton   v.   Fay,    10   Allen,    505; 
Howe  r.  Russell,  36  Me.  115. 
^  Wyche  r.  Greene,  11  Ga.   172. 


078  RE-EXECUTION,    REFORMATION,    ETC.  [PART  III. 

its  terms  the  nature  of  the  debt  itself,  and  the  correction  will 
therefoi'e  take  place  in  favor  of  the  presumed  intention  of  the 
parties.^  Indeed,  some  cases  have  gone  still  further,  and  it  has 
ijeen  held  that  whenever  a  loan  is  made  to  two  jointly  it  will 
be  presumed  in  equity  that  every  debtor  was  to  be  personalh- 
liable  until  the  money  should  be  paid;  and  that,  therefore,  a 
debt  so  arising,  though  at  law  it  is  the  joint  debt  of  all  the  co- 
debtors,  shall  be  treated  in  equity  as  the  several  debt  of  each;  - 
but  it  has  been  doubted  whether  these  authorities  have  not 
carried  the  doctrine  under  consideration  too  far.^  The  doctrine 
will  not  apply  when  the  original  creation  of  the  debt  was  in  the 
form  of  a  joint  obligation,  for  in  such  a  case  there  can  be  no 
presumption  that  the  contract  of  the  parties  was  meant  to  as- 
sume a  different  shape,  and  equity  will  not  interfere  upon  con- 
jecture merely.'*  Nor  will  such  a  presumption  be  entertained 
in  a  case  of  a  mere  surety,  whose  duty  is  measured  solely  by  the 
legal  force  of  the  bond,  and  who  is  under  no  moral  obligation 
to  pay  the  obligee  independent  of  his  covenant.  There  is  nothing, 
therefore,  in  such  a  case,  on  which  to  found  an  equity  for  the 
interposition  of  a  Court  of  Chancery.^  Where,  however,  the 
evidence  plainly  establishes  the  fact  that  the  intention  of  the 
parties  was  to  make  the  instrument  several  as  well  as  joint,  it 
will  be  reformed  even  as  against  the  estate  of  one  who  w^as  oidy  a 
surety.^ 

l^pon  the  same  principle  of  reformation,  if  a  mortgage  is  made 
of  a  wife's  property,  and  the  ec^uity  of  redemption  is  limitc^d  to 
the  husband  alone,  and  it  appears  from  all  the  circumstances  of 
the  case  that  nothing  more  was  intended  to  affect  it  (the  property 
of  the  wife)  than  the  creation  of  a  mortgage,  equity  will  interfere 
by  reforming  the  instrument,  and  restoring  the  equity  of  re- 
demption to  the  wife.'^ 

1  Hyde    v.    Tanner,    1    Barb.    75;  *  Sumner  v.  Powell,  2  Meriv.  .30; 
Weaver  v.  Shryock,  6  S.  &  R.  262;  Underbill  v.  Norwood,   10  Ves.  209; 
Pickersgill  r.  Lahens,   15  Wall.  144.  Jones  i\  Beach,  2  De  G.,  M.  &  (i.  886; 
See,    also,    Stiles    v.    Brock,    1     Pa.  Moser  r.  Libenguth,  2  Rawle,  428. 
215.  5  Pickersgill    v.    Lahens,    15    Wall. 

2  Simpson  v.  Vaughan,  2  Atk.  .31;  144. 

Thorpe  v.  Jackson,  2  Y.  &  C.  Exch.  e  Olmsted    v.    Olmsted,    38    Conn. 

553.     See  United  States  v.  Price,  9  318. 

How.  103.  7  Demarest  r'.  Wynkoop,  3  Johns. 

3  Jones  V.  Beach,  2  De  (J.,  M.  &  Ci.  Cli.  129;  Whitebread  v.  Smith,  3  De 
886.  G.,  M.  &  G.  737. 


CH.  III.]  RE-EXECUTION,    REFORM ATIOX,    ETC.  G79 

472.  Rescission;  voidable  contracts,  how  far  good. 

It  has  been  stated  in  a  former  chapter  that,  in  certain  cases 
of  fraud  and  mistake,  the  proper  redress  which  ought  in  justice 
to  be  afforded  to  the  injured  party  is  that  the  transaction  into 
which  he  has  entered  should  be  set  aside,  and  the  written  evi- 
dence thereof  surrendered  or  destroyed.  Some  of  the  rules  also 
upon  which  a  court  of  equity  acts  in  cases  of  rescission  have  been 
attempted  to  be  pointed  out;  such  as  those  which  relate  to  the 
admissibility  of  parol  evidence  in  such  cases,  and  those  also  by 
which  the  loss  of  the  complainant's  right  to  relief  through  con- 
firmation, acquiescence,  or  delay  is  controlled.  In  addition  to 
the  above,  it  may  be  stated  here,  that  a  transaction  which  is 
capable  of  being  rescinded  on  the  ground  of  fraud,  is  to  be  treated 
as  good  until  rescinded,  and  not  as  bad  until  confirmed;  or,  in 
other  words,  that  a  contract  which  mdij  be  set  aside  at  the  option 
of  the  injured  party,  is  to  be  considered  as  being  in  effective 
operation  until  that  party  takes  measures  to  enforce  his  right 
to  rescind.^  This  was  well  put  by  Mr.  Mellish,'  in  his  argument  in 
Oakes  v.  Turquand  before  the  House  of  Lords,  in  the  following 
query :  When  you  say  that  an  agreement  is  voidable  and  not  void, 
and  when  the  complainant  endeavors  to  insist  upon  his  right 
to  treat  it  as  void,  is  the  agreement  to  be  taken  as  valid  until 
rescinded,  or,  when  rescinded,  to  be  taken  to  have  been  void 
from  the  first?  And  this  cjuery  was  answered  by  the  tribunal 
to  which  it  was  addressed  to  the  effect  that  the  agreement  iras 
to  be  taken  as  subsisting  imtil  rescinded;  but  with  this  important 
qualification,  that  it  was  not  to  be  considered  as  rescinded  only 
as  of  the  date  of  the  decree  of  the  court  setting  the  transaction 
aside,  but  as  of  the  date  of  the  unecjuivocal  and  open  declaration 
of  the  injured  party  that  he  demands  a  rescission,  followed,  upon 
a  refusal,  by  a  prompt  application  to  the  courts.^ 

Rescission,  however,  is  a  nght  of  the  complainant,  and  not  a 
means  for  the  assertion  thereof;  it  is  an  equitii,  rather  than  an 
equitable  remedy.  In  enforcing  this  equity,  a  Court  of  Chancery 
will,  as  the  necessities  of  the  case  reciuire,  afford  relief  either  by 

1  Rigdon  V.  Walcott,  43  111.  App.  2  Afterwards  Lord  Justice  Mellish. 

352;  31  N.  E.  Rep.  15S;  Niagara  Fire  3  Qakes  v.  Turquand,  L.  R.  2  H.  L. 

Ins.  Co.   V.  Scammon,    144   ^11.   490.  325.     See,  also,  Reese  River  Mining 

It  will  be  remembered  that  the  in-  Co.  v.  Smith,  4  Id.  64,  and  Wharton 

jured  person  must,  in  many  cases,  be  on  Evidence,  §§  1017  et  seq.,  upon  the 

very  prompt.     See  note,  §  260.     See,  general  subject  of  rescission, 
also,  Baker  v.  Lever,  67  X.  Y.  '.'A)A. 


080 


RE-EXECUTIOX,    KEFOUMATION,    ETC.  [I'AUT  III, 


directing  a  reconveyance/  or  by  simply  ordering  an  instrument 
to  be  surrendered  for  cancellation.  This  relief  is  based  upon 
equities  which  have  been  already  considered,  viz.,  fraud  and 
mistake;^  and  the  decrees  which  are  made  in  such  cases  are 
naturally  in  accordance  with  the  general  course  and  practice 
of  chancery,  which  always  aims  at  specific  relief. 

473.  Cancellation  as  applied  in  the  rescission  of  voidable 

contracts. 

Where  a  decree  for  the  delivery  up  and  cancellation  of  an  in- 
strument is  made  in  such  cases,  it  is  founded  upon  the  theory 
that  a  man  suffers  a  wrong  where  an  instrument  is  left  outstand- 
ing, which  is  the  evidence  of  a  void  or  voidable  transaction,  and 
which  could  only  be  used  for  a  sinister  purpose.  Even,  there- 
fore, where  the  instrument  is  void,  the  decree  may  contain  a  di- 
rection for  its  delivery  and  cancellation ;  ^  a  fortiori,  will  this 
be  done  where  the  instrument  is  evidence  of  a  merely  voidable 
transaction,^  and  above  all  if  it  is  of  a  negotiable  character.^ 

474.  Cancellation  independent  of  rescission. 

But  in  some  cases  the  right  of  the  complainant  to  resort  to 


1  Or  a  redelivery,  if  tlie  deed  has 
been  placed  in  escrow.  Howlin  ik 
Castro,  136  Cal.  605. 

2  See  Adam  v.  Newbigging,  13  App. 
Cas.  208  (where  there  was  a  re- 
scission, although  there  was  no 
fraud);  Robinson  v.  Iron  Railway 
Co.,  135  U.  S.  530;  South.  Develop- 
ment Co.  V.  Silva,  125  Id.  247;  Du- 
Bois  V.  DuBois,  176  Pa.  430;  In  re 
Addlestone  Linolevmi  Co.,  37  Ch. 
D.  191;  Ccddcs's  Appeal,  80  Pa.  442; 
Stephen's  &  Wife's  Appeal,  87  Id. 
202;  Babcock  v.  Day,  104  Id.  4; 
Blygh  V.  Samson,  137  Id.  369;  Wilson 
1'.  Moriarty,  77  Cal.  596;  Booker  v. 
Wingo,  29  S.  C.  116;  Castle  v.  Kemp, 
124  111.  307,  and  Goodrich  v.  Smith, 
87  Mich.  1. 

2  Hamilton  v.  Cummings,  1  Johns. 
Ch.  520-524;  Smith  v.  Pearson,  24 
Ala.  358;  Haskell  v.  Sutton,  53  W.  Va. 
206:  post,  §  575;  Hays  r.  Hays,  2  Ind. 
28;  Story's  Eq.  Jurisp.  §  700;  Chicago 
V.  Cameron,   I'JO  111.   147;  Day  L.  A 


C.  Company  v.  The  State,  68  Tex. 
526;  Shaw  v.  Allen,  184  111.  77. 

4  See  Bromley  v.  Holland,  7  Ves. 
3;  Wilson  v.  Getty,  57  Pa.  266;  Hart- 
ford V.  Chipman,  21  Conn.  488; 
Foley  V.  Kirk,  33  N.  J.  Eq.  170;  Mer- 
ritt  V.  Ehrman,  116  Ala.  278;  Town 
of  Weston  v.  Ralston,  48  W.  Va.  170. 

5  Ryan  v.  Mockmath,  note  to  Min- 
shaw  V.  Jordan,  3  Bro.  C.  R.  16 
(Brown's  notes) ;  Hughes  v.  The  Uni- 
ted States,  4  Wall.  236;  Metier  v. 
Metier,  18  N.  J.  Eq.  270;  19  Id.  457; 
Starr  v.  Ellis,  6  Johns.  Ch.  393;  Fer- 
guson V.  Fisk,  28  Conn.  501;  Wood  v. 
Union,  etc.,  Association,  63  Wis.  9; 
Hiett  V.  ShuU,  36  W.  Va.  563,  an. I 
Merritt  v.  Ehrman,  116  Ala.  27S. 
But  an  overdue  note  to  which  there 
is  a  perfect  defence  at  law  will  not  In^ 
directed  to  be  given  up  and  can- 
celled. Lewis  V.  Tobias,  10  Cal.  574, 
Shoup  ('.  Cook,  1  Ind.  135;  DuU's 
.\ppeal,  113  Pa.  515;  Beer  v.  Land- 
man, 88  Tex.  450. 


CH.  III.] 


RE-EXECUTION,    REFORMATION,    ETC. 


GSl 


the  court  depends  solely  upon  the  necessity  for  getting  in  and 
cancelling  an  instrument  without  any  allegation  that  it  is  the 
evidence  of  a  void  or  voidable  transaction,  but  simply  on  the 
ground  that,  for  some  reason  or  other,  the  instrument  itself  may 
be  productive  of  annoyance  or  vexatious  litigation.^ 

A  striking  illustration  of  this  may  be  found  in  the  cases  where 
forged  instruments  have  been  ordered  to  be  given  up;  and  where 
a  deed  has  been  directed  to  be  cancelled,  although  it  may  have 
become  a  mere  nullity,  because  it  created  a  cloud  upon  a  title.- 
The  jurisdiction  of  courts  of  equity  in  cases  of  this  kind  is  exer- 
cised quia  timet — that  is,  because  of  a  fear  of  future  or  contingent 
harm.  The  same  principle  applies  to  bills  filed  for  other  purposes, 
and  has,  indeed,  given  its  name  to  this  peculiar  class  of  bills, 
which  will  be  noticed  hereafter.^ 

475.  Relief  by  rescission  and  cancellation  a  matter  of  ju- 
dicial discretion. 

It  is  a  familiar  principle  of  equity,  that  the  application  of  the 
relief  by  rescission  and  cancellation  rests  in  the  sound  discretion 
of  the  court:  and  that  a  chancellor  may  refuse  to  interfere  for 
the  purpose  of  setting  a  transaction  aside,  although  he  woukl, 
at  the  same  time,  decline  to  enforce  its  specific  performance. 
Cancelling  an  executed  conveyance  is  the  exertion  of  a  most  ex- 
traordinary power  in  courts  of  equity,  and  when  asked  for  on 
any  ground  it  will  not  be  granted  unless  the  ground  for  its  exer- 
cise most  clearly  appears.'*     Where  no  such  ground  exists  the 


1  Maclean  v.  Fitzsimons,  80  Mich. 
336. 

2  Peake  v.  Highfield,  1  Russ.  559; 
Remington  Paper  Co.  v.  O'Dough- 
erty,  81  N.  Y.  482;  Cook's  Adm'rs  v. 
Cole,  6  N.  J.  Eq.  522,  627;  Bunce  v. 
Gallagher,  5  Blatchf.  481;  Banks  v. 
Evans,  10  Sm.  &  M.  35;  Lisle  v.  Lid- 
die,  3  Anst.  649;  Ryan  v.  Mockmath, 
3  Bro.  C.  R.  15  (Brown's  notes).  See, 
also,  Tucker  v.  Kenniston,  47  N.  H. 
267;  Williams  v.  Fitzhugh,  37  N.  Y. 
444;  Hamilton  v.  Cummings,  1  Johns. 
Ch.  521;  Bushnell  v.  Harford,  4  Id. 
301;  Cornish  v.  Bryan,  10  N.  J.  Eq. 
146;  Martin  v.  Graves,  5  Allen,  661, 
Kennedy  v.   Kennedy,   43   Pa.  417; 


Stewart's  Appeal,  78  Id.  88.  The 
better  and  more  generally  adopted 
rule  is  that  a  deed  will  not  be  can- 
celled unless  the  consideration  be 
refunded  or  the  grantee  restored  to 
his  original  position.  Coburn  r.  Ray- 
mond, 76  Conn.  484. 

3  Post,  Chap.  IX. 

*  See  Atlantic  Delaine  Co.  ?'. 
James,  94  U.  S.  207;  Union  Railroad 
Co.  V.  Dull,  124  Id.  174;  Hennessy 
V.  Bacon,  137  Id.  78;  Brainard  v. 
Holsaple,  4  Greene  (Iowa),  485; 
Dyar  v.  Walton  &  Co.,  79  Cia.  46ti, 
Fuller  V.  Buice,  80  Id.  395;  Summer- 
lin  ('.  Cowles,  101  N.  C.  473;  Badgett 
r.    Frick,    28   S.   C.    176;    Booker    v. 


682 


RE-EXKCl'TI()\,    REFORM ATTOX,    ETC.  [PART  III. 


court  will  leave  the  parties  to  their  coimnon-law  or  statutory 
remedies.^ 


476.  Coiiipeiisation. 

The  remedies  by  specific  performance,  injunction,  reformation, 
and  cancellation,  would  seem  to  embrace  the  whole  circle  of 
duties  and  obligations,  and  furnish  appro])riate  redress  for  any 
violation  of  the  same.  There  is,  however,  one  case  still  remaininj^- 
in  which  these  remedies  may  possibly  fail  to  furnish  exact  jus- 
tice, and  that  is  when  the  execution  of  a  decree  for  specific  pei- 
formance  or  for  an  injunction  has  become  impossible.  In  such  a 
case  the  (juestion  arises:  Is  the  complainant's  bill  to  be  dismissed? 
Or  is  any  relief  to  be  afforded  him  by  way  of  compensation? 

The  tendency  of  courts  of  equity  in  this  country  is  somewhat 
in  favor  of  affording  relief  in  ))ro])er  cases  by  compensation; 
although  there  are  decisions  and  opinions  entitled  to  great 
weight,  in  which  a  different  view  has  been  adopted. - 

477.  Rule  in  England;  Sir  Hugh  Cairns's  Act. 

In  r]ngland,  prior  to  the  statute  21  and  22  Vict.,  c.  27  (com- 
monly known  as  Sir  Hugh  Cairns's  Act),  damages  or  compen- 
sation were  decreed  in  favor  of  a  complainant  in  equity  only  as 
incidental  to  other  relief  sought  by  the  bill  and  actually  granted, 
or  where  there  was  no  adc(iuate  remedy  at  law,  or  where  some 
peculiar  equities  intervened.  By  that  statute  it  is  in  substance 
enacted  that  in  cases  of  contracts,  where  the  court  has  jurisdic- 
tion by  way  of  injunction  or  specific  performance,  it  shall  be 
lawful  for  the  same  court,  if  it  shall  think  fit,  to  award  damages 
to  tlie  injured  party  either  in  addition  to  or  in  substitution  for 
such  injunction  or  specific  performance.^ 


Wiiij^o,  21t  Id.  110;  Pennybacker  v. 
Laidley,  '-'t'-i  W.  Va.  024;  Connor  v. 
Ciroh,  <t()  M(l.  074. 

'See  Beck  r.  Simmons,  7  .\la.  71; 
Watkins  r.  Collin.s,  11  Ohio,  M  ;  Kirby 
V.  Harrison,  2  Ohio  St.  320;  and 
Mackall  v.  C'asilear,  137  U.  S.  550; 
Seymour  Water  Co.  v.  Seymour,  103 
Ind.  120.  See,  also,  Eckman  v.  Eck- 
mau,  55  Pa.  209;  Edmonds's  Appeal, 
5(»  Id.  220;  (ilobe  Mutual  Life  Ins.  Co. 
1'.  Reals,  70  \.  Y.  202;  Farmlngton 
Vill.  Corp.  V.  Bank,  85  Me.  40;  and 


post,  §  575.  The  insertion  of  a  pen- 
alty is  no  bar  to  the  rescission  of  an 
executory  contract.  Wilson  v.  Roots, 
119  111.  379.  As  to  the  effect  of  de- 
lay, see  Mudsill  Mining  Co.  v.  Wat- 
rous,  22  U.  S.  .\pp.  12. 

2  See  3  Pars,  on  Cont.  403  (0th 
ed.). 

3  See  Johnson  v.  Wyatt,  2  De  G.,  J. 
«fe  S.  18;  Middleton  v.  Greenwood,  Id. 
142.  Lord  Cairns's  Act  was  repealed 
by  Stat.  40  and  47  Vict.,  c.  49,  but 
the  saving  clause  of  the  repealing  act 


CH.  III.] 


RE-EXECUTIO\,    REFORMATION,    ETC. 


683 


There  had,  indeed,  been  some  decisions  in  England  in  which 
the  right  of  a  court  of  equity  to  decree  compensation  for  the 
injury  sustained  by  the  non-performance  of  a  contract,  in  the 
event  of  the  primary  relief  for  a  specific  performance  failing, 
had  been  recognized;  and  bills  were  not  unfrequently  filed  in 
which  such  relief  was  prayed.^  But  the  case  of  Denton  v. 
Stewart,^  in  which  that  doctrine  was  promulgated,  was  sub- 
sequently overruled ,  ^  and  the  law  was  stated  by  Lord  St. 
Leonards,  in  the  last  edition  of  his  Treatise  on  Vendors  and 
Purchasers,  to  be  against  the  power  of  the  court  to  award  com- 
pensation in  such  cases,  independently  of  the  statute.^ 


478.  No  uniform  rule  on  this  subject  in  the  United  States. 

On  this  side  of  the  Atlantic  the  decisions  have  not  been  uni- 
form ;  but,  perhaps,  their  tendency  is  now  rather  in  favor  of  the 
power  of  the  court  to  decree  compensation.  The  authority  of 
Denton  v.  Stewart  was  recognized  by  Chancellor  Kent  in  Phillips 
V.  Thompson;^  and  although  that  distinguished  jurist  in  later 
cases  ^  refused  to  act  upon  this  decision,  yet  there  are  several 
more  recent  authorities  in  favor  of  the  power  of  courts  of  equity 
to  award  compensation.'^ 


preserves  the  jurisdiction  to  give 
damages.  Such  reservation,  how- 
ever, was  not  really  necessary,  for  un- 
der the  Judicature  Acts  damages  can 
be  given.  Sayers  v.  CoUyer,  28  Cli. 
D.  107. 

1  See  the  remarks  of  Vice-Chan- 
cellor Sir  Richard  Malins  in  Abera- 
man  Iron  Works  v.  Wickens,  L.  R.  5 
Eq.  505. 

2  1  Cox,  258;  1  Ves.  Jr.  329,  n. 
See,  also,  Greenaway  v.  Adams,  12 
Ves.  395;  Gwillim  v.  Stone,  14  Ves. 
128. 

3  Todd  V.  Gee,  17  Ves.  279. 
4Sug.  V.  &  P.  233   (Vol.  I.,  350, 

8th  Am.  ed.).  See,  also,  Aberaman 
Iron  Works  v.  Wickens,  L.  R.  5  Eq. 
485;  L.  R.  4  Ch.  101.  The  decree 
of  the  Vice-Chancellor  in  this  case 
was  reversed,  but  upon  the  ground 
that  the  disappointed  purchaser  had 
a  lien  for  the  amount  of  the  purchase- 
money;  and  the  decision  of  the  Court 


of  Appeals  is  not,  therefore,  to  be 
considered  as  an  authority  in  favor 
of  the  doctrine  that  a  bill  would 
lie,  in  such  a  case,  for  compensation 
simply. 

5  1  Johns.  Ch.  l.")0.  See,  also, 
Parkhurst  v.  Van  Cortlandt,  Id.  27:'). 

"Hatch  V.  Cobb,  4  Johns.  Ch.  559; 
Kemshall  i'.  Stone,  5  Id.  193.  See, 
also,  Woodman  ?\  Freeman,  25  Me. 
531. 

'Andrews  v.  Brown,  3  Cush.  130; 
Jervis  v.  Smith,  1  Hoff.  Ch.  470; 
Masson's  Appeal,  70  Pa.  26;  Nagle  v. 
Newton,  22  Gratt.  814;  Oliver  r. 
Croswell,  42  111.  41;  Smith  v.  Kellcy, 
56  Me.  64.  See,  also,  Pratt  ?•.  Law, 
9  Cranch,  494;  Woodcock  v.  Beancl, 
1  Cow.   711,   756;   Payne  v.  Ciraves, 

5  Leigh,  561 ;  Johnston  v.  ( Jlancy,  4 
Blackf.   94;   Rockwell   v.    Lawrence, 

6  N.  J.  Eq.  190;  Aday  v.  Echols,  18 
Ala.  3.>3;  Cross  v.  Her,  103  Md.  592; 
Chambers  v.  Cannon,  62  Tex.  293. 


684 


RE-EXKri'Tl()\,    REFORM ATIOX,    ETC. 


[fart  III. 


Thus,  in  New  York  City  v.  Pine  ^  it  was  held  that  a  court  of 
e(|uity  might  decline  to  grant  an  injunction  to  restrahi  a  trespass 
oi-  a  nuisance  upon  the  defendant's  compliance  with  a  condition 
to  pay  damages,  which  is  only  a  roundabout  way  of  enforcing 
a  money  compensation. 

In  Masson's  Appeal  -  a  decree  was  made  for  damages  for  the 
use  of  a  party-wall,  the  bill  having  been  originally  filed  for  an 
injunction  to  restrain  the  use,  and  an  injunction  having  beconu' 
impossible  in  consequence  of  an  actual  user  of  the  wall,  after  the 
institution  of  the  suit,  by  agreement  of  the  parties.  And  in 
Nagle  V.  Newton,  although  the  compensation  in  that  case  was 
decreed  as  incidental  to,  and  not  as  in  substitution  for,  o.ther  re- 
lief, the  language  of  the  court  seems  to  approve  of  the  exercise  of 
the  power  by  courts  of  ecjuity  to  afford  compensation  as  a  dis- 
tinct and  independent  relief.^ 

But  damages  will  not  he  awarded  by  a  Court  of  Chancery, 
when  a  bill  for  specific  performance  is  exhibited  by  a  vendee 
with  knowledge  that  the  specific  relief  has  been  rendered  im- 
possible by  a  conveyance  of  the  land  sold  to  an  innocent  jnir- 
chaser.'' 

Where  an  hijimction  is  granted,  the  court  will  decree  an  ac- 
count of  the  damages  suffered  as  incidental  to  the  main  relief. 
This  appears  to  be  the  settled  rule  both  in  England  and  in  this 
country.^ 


1  185  U.  S.  i»3,  104,  citing  Pap- 
penheim  v.  Metropolitan  Elevated 
Railway  Co.,  128  N.  Y.  436. 

^  70  Pa.  26;  Milkman  v.  Ordway, 
106  Mass.  253;  Wonson  v.  Fenno, 
129  Id.  405;  Head  v.  Meloney,  111 
Pa.  102;  Russell  v.  Farley,  105  U.  S. 
433;  Hazen  v.  Lyndonville  Bank,  70 
Vt.  543. 

3  See  opinion  of  Mr.  Justice  Chris- 
tian in  Xagle  ?).  Newton,  22  Gratt. 
820;  and  see  Miles  v.  Dover  F.  Iron 


Co.,  125  N.  Y.  294.  But  where  the 
entire  ground  for  equitable  relief  fail.s, 
the  bill  cannot  be  retained  to  recover 
damages.  Dakin  v.  Union  Pac.  R. 
Co.,  5  Fed.  Rep.  665;  Campbell  v. 
Rust,  85  Va.  653.  See,  however, 
Rogers  v.  Pattie,  96  Va.  498. 

*  Mack  V.  Mcintosh,  181  111.  633. 

5  Thomas  v.  Oakley,  18  Ves.  184; 
Bonder's  Appeal,  57  Pa.  498;  Cole- 
man's Appeal,  75  Id.  441;  Allison 
&  Evans's  Appeal,  77  Id.  227. 


CH.  IV.] 


ACCOUNT,    PARTITION,    ETC. 


685 


CHAPTER  IV. 


account;  partition;  dower;  boundaries;  rent. 


47'J.  Cieneral  nature  of  the  right  to 
an  account. 

480.  Bills  for  Account. 

481.  Inadequacy  of  the  common-law 

remedies. 

482.  Origin  of  the  remedy  in  equity. 

483.  Limitations  upon  this  remedy. 

484.  Extent  of  the  remedy. 

485.  Plea  of  stated  account. 

48(j.   Leave  to  surcharge  and  falsify. 

187.  Partition;  origin  of  jurisdiction 

of  chancery. 

188.  Disadvantages  of  proceeding  at 

common  law ;  changes  by  stat- 
ute in  the  United  States. 

489.  Advantages  of  mode  of  proce- 

dure in  equity. 

490.  Mode    of    making    partition    in 

equity. 


491.  Difficulties  of  making  partition 

no  objection  to  a  decree. 

492.  Power  to  award  owelty. 

493.  Power  to  order  a  sale. 

494.  Nature  of  Dower. 

495.  Remedy  by  bill  in  equity. 

496.  Disadvantages  of  the  proceed- 

ing at  common  law. 

497.  Advantages  of  the  procedure  in 

equity. 

498.  Account  of  mesne  profits. 

499.  Multiplicity  of  suits  avoided. 

500.  Dower  out  of  equitable  estates. 

501.  General  conclusions  as  to  equi- 

table jurisdiction. 

502.  Manner  of  assigning  dower. 

503.  Jurisdiction  of  equity  in  cases  of 

Confu.sion  of  Boundaries. 

504.  In  cases  of  rent. 


479.  General  nature  of  the  right  to  an  account. 

The  equitable  remedy  of  Account  is  applied  whenever  it  is 
)'e(iuired,  as  a  matter  of  course,  in  all  cases  in  which  equitable 
titles  are  to  be  protected,  and  equitable  rights  enforced;  and, 
also,  in  many  instances  where  jurisdiction  has  been  assumed  by 
vii'tue  of  equitable  remedies.  Thus,  if  a  trustee  violates  his  duty 
by  making  a  profit  at  the  expense  of  the  trust  estate,  it  is  part 
of  the  relief  to  which  the  cestui  que  trust  is  entitled,  and,  there- 
fore, part  of  the  redress  which  a  court  of  equity  affords,  that 
the  trustee  shall  account  for  the  j)rofits  thus  improperly  made 
to  the  injury  of  the  equitable  title.  So,  if  a  conveyance  tainted 
with  fraud  is  sought  to  be  set  aside,  it  may  be  necessary,  foi- 
a  comj)l('te  vindication  of  the  equitable  right  which  the  com- 
plainant seeks  to  enforce,  that  the  defendant  should  account  for 
the  rents  and  profits  of  the  property  which  he  has  been  fraudu- 
lently enjoying ;  and  this  account  is,  accordingly,  ordered  as  part 


686  ACCOUNT,    PARTITION-,    ETC.  [PART  III. 

of  the  relief  required  for  the  protection  of  the  complainant's 
equity.  The  cases,  already  noticed,  in  which,  in  bills  for  in- 
junctions, an  account  will  be  decreed,  are  illustrations  of  llic 
mode  in  which  this  particular  form  of  relief  is  applied  in  con- 
junction with  other  equitable  remedies. 

In  nil  of  the  above  instance's  the  account  plays,  as  it  were,  a 
subortlinate  part,  and  is  used  more  effectually  to  work  out 
equities  which  form  the  basis  of  the  bill. 

480.  Bills  for  Account. 

But  there  are  other  cases,  and  it  is  with  these  that  we  have 
now  to  do,  in  which  the  jurisdiction  of  Courts  of  Chancery  is 
based  solely  upon  the  remedy  of  account,  and  in  which  \Aithout 
the  necessity  for  this  remedy  the  case  would  present  no  features 
to  warrant  the  interposition  of  the  chancellor.  Bills  filed  in 
such  cases  are,  in  the  true  technical  sense,  bills  for  account,  and 
in  them  the  remedy  itself  invokes  or  gives  rise  to  the  jurisdiction, 
whereas  in  the  instances  already  put,  the  jurisdiction  already 
attached  invokes  or  makes  use  of  the  remedy. 

481.  Inadequacy  of  the  connnon-law  remedies. 

Bills  for  account  took  their  rise  from  the  inadequac}'  of  the 
common-law  actions. 

The  only  forms  of  action  which  were  at  all  applicable  to  cases 
of  account  were  assumpsit  and  account-render. 

The  former  lay  for  the  balance  of  an  account.  If  this  balance 
was  admitted,  of  course  there  was  no  difficulty ;  but  if  the  balance 
was  disputed,  and  it  became  necessary,  in  order  to  ascertain  it, 
that  the  accounts  between  the  parties  should  be  gone  over  item 
by  item,  it  was  entirely  out  of  the  power  of  a  jury  to  accomplish 
such  a  task,  and  the  remedy  accordingly  failed. 

The  action  of  account-render  was  more  effective,  but  labored 
under  several  disadvantages.  After  the  preliminary  judgment, 
(juod  computet,  the  account  was  referred  to  auditors,  who  could 
indeed  go  over  it  item  by  item,  but  who  had  not,  originally,  the 
l^ower  of  examining  parties,  although  this  power  was  subse- 
quently conferred  u))on  them  by  statute.^  In  respect  to  contro- 
verted items  the  auditors  had  no  power  of  passing  upon  them 
at  once,  so  as  to  carry  on  a  continuous  investigation,  but  were 
obliged  to  refer  each  disputed  item  to  the  court  or  a  jury  as  a 

I  3  and  4  Anne,  c.  16. 


CH,  IV.]  ACCOUNT,    PARTITION,    ETC.  087 

distinct  issue  of  law  or  fact; '  and  if,  after  the  investigation  had 
been  made  and  the  account  taken,  it  was  found  that  the  balance 
was  against  the  plaintiff,  no  judgment  therefor  could  be  entered, 
and  no  payment  could  be  enforced.^ 

Moreover,  the  remedy  itself  was  applicable  to  a  few  cases  only. 
By  the  I'ules  of  the  common  law  none  could  be  charged  in  account- 
render  but  guardians  in  socage,  bailiffs,  or  receivers,  except  that, 
in  favor  of  merchants  and  for  the  advancement  of  trade,  a  person 
naming  himself  as  a  merchant  might  have  an  action  against  an- 
other naming  him  merchant  and  charging  him  as  his  receiver. 
But  the  action  did  not  lie  between  the  executors  and  adminis- 
trators of  the  parties;  although  it  was  subsequently  extended 
to  them  by  several  statutes.**' 

482.  Origin  of  the  remedy  in  equity. 

These  disadvantages  of  the  common-law  remedies  very  natu- 
rally led  to  a  resort  to  courts  of  equity,  and  bills  for  account  con- 
sequently came  to  constitute  a  well-established  head  of  equitable 
jurisdiction.^  In  such  bills  a  foundation  is  first  laid  for  all  neces- 
sary inquiries,  by  the  discovery  elicited  from  the  defendant's 
answer.'"^  The  cause  is  then  referred  to  a  master,  before  whom  the 
account  is  taken,  who  has  the  power  to  examine  parties  under 
oath,  who  can  compel  the  production  of  books  and  documents, 
and  by  whom  all  the  items  can  be  passed  upon,  subject  to  a  re- 
vision by  the  court  upon  the  coming  in  of  his  report.*^ 

48:i.  Limitations  upon  tliis  remedy. 

It  must  not  be  supposed,  however,  that  a  Court  of  Chancery 
can  draw  to  itself  every  transaction  between  individuals  in  which 
an  account  between  parties  is  to  be  adjusted.  Its  jurisdiction 
is  limited  by  certain  restrictions.  A  court  of  equity  cannot  take 
cognizance  of  every  action  for  goods,  wares,  or  merchandise  sold 
and  delivered    or  of  money  advanced,  where  partial  payments 

1  This  deficiency  in  the  common-  *  See  Long  r.  Majestre,  1  Johns, 
law  action  is  now  remedied  in  some  Ch.  305;  Dubourg  de  St.  Colombe's 
states  by  statute:  svich  is  the  case  Heirs  r.  United  States,  7  Pet.  625; 
(for  example)  in  Pennsylvania  and  Hickman  v.  Stout,  2  Leigh,  6;  Power 
Massachusetts.  v.  Reeder,  9  Dana,  6;  Hay  v.  Mar- 

2  Spence's  Eq.  649.  shall,    3   Humph.    623;    Kirkman    v. 

3  13  Edw.  I.,  St.  1,  c.  23;  25  Edw.  Vanlier,  7  Ala.  217. 

IIL,  St.  5,   c.  5;  38  Edw.  L,  st.   1,  5  Yates  r.  Stuart,  39  W.  Va.  124. 

c.  11;  3  and  4  Anne,  c.  16.  «  Adams's  Doct.  of  Equity,  225. 


688 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


have  been  made,  or  of  vxcvy  contract,  express  or  implied,  con- 
sisting of  various  items,  in  which  different  sums  of  money  have 
become  due,  and  different  payments  have  been  made.' 

Airain,  a  naked  right  of  set-off'  will  not  be  a  sufficient  ground 
f  M-  ;i  bill  for  an  account.  The  nature  of  a  set-off"  has  been  already 
'.  xplained,  and  it  will  be  sufficient  to  refer  to  the  explanation 
'  rivvc  given. ' 

Now,  this  right  is  entirely  diff'ercnt  from  the  right  to  an  ac- 
count, where  the  demands  are  not  of  a  distinct  and  independent 
character,  but  are  connected  in  such  a  way  that  the  whole  series 
forms  one  transaction.-'' 

It  has,  however,  been  pointed  out  in  a  former  chapter  that 
courts  of  cciuity  will  entertain  jurisdiction  in  certain  cases  of 
set-off.  Bills  in  such  cases  bear  some  small  resemblance  to  bills 
for  an  account,  but  th(>y  should  not  be  confounded  with  the 
technical  bill  for  an  account.  Where  the  receipts  or  payments, 
or  both,  are  all  on  one  side,  a  bill  for  an  account  will  not  lie."* 
Nor  will  a  bill  for  an  account  lie  against  a  disseisor  or  other 
wrong-doer.'"^ 

484.  Extent  of  tlie  remedy. 

While  the  jurisdiction  of  Courts  of  Chancery  in  matters  of 
account  is  limited  by  the  considerations  above  stated,  and  p(M-- 
h;i])s  by  others,  it  is,  nevertheless,  difficult  to  draw  the  line  with 
absolute  })recision.*^     It  may,  however,  be  afhrmed  that  in  all 


1  I'owlc  r.  Lawrason,  5  Pet.  502; 
Xcfjbit  )'.  St.  Patrick's  Church,  !) 
.\.  J.  Ec].  7().  Sec,  also,  Pollak  v. 
("laflin  Co.,  I'AS  Ala.  644;  Robinson  v. 
Bullock,  Id.  618;  Livey  r.  Winton, 
;!0  V\' .  Va.  o.')4. 

-  Ante,  §  327,  and  note. 

3  See  Ranger  r.  (iroat  Western 
Railway  Co.,  5  II.  T;.  ("as.  '.)1. 

4  Passyunk  Building  .\^:sociat ion's 
Appeal,  83  Pa.  441;  Bank  of  H.  S. 
/;.  Biddle,  2  Parsons,  r>4;  Crubb's  .\p- 
peal,  no  Pa.  228;  1  St„ry's  Equity, 
§§  45-08;  (liahani  r.  Cummings,  208 
Pa.  516. 

5  Frisl)ee's  Ajipeal,  88  I'a.  146,  and 
cases  cited.  .\  court  of  equity  has 
no  jvu'isdiction   of  a   liill   for  an   ac- 


count of  profits  brought  by  one  out 
of  possession  who  claims  to  be  a 
joint  owner  against  an  alleged  co- 
tenant  until  the  question  of  title  is 
first  determined  in  an  action  at  law. 
Sweringen  ?'.  Barnsdall,  210  Pa.  84. 
8  Fowle  V.  Lawrason,  5  Pet.  495; 
Seymour  ?•.  Dock  Co.,  20  N.  J.  Eq. 
407.  .\  bill  in  equitj-  by  a  principal 
against  an  agent  for  an  account  is 
prima  fnrie  cognizable  in  equity,  and 
the  jurisdiction  of  equity  is  not 
subsetjuently  ousted  by  the  fact  that 
the  substantial  contest  between  the 
parties  finally  narrows  down  to  a 
single  item.  Fischer  v.  Riehl,  219 
Pa.  505. 


en.  iv.J 


ACCOUNT,    PARTITION',    KTC. 


G89 


cases  in  which  an  action  of  account  would  be  a  proper  remedy 
at  law,  the  jurisdiction  of  a  court  of  equity  is  undoubted;  '  and 
that  this  jurisdiction  will  extend,  moreover,  to  all  cases  of  mutual 
accounts,  and  also  to  cases  in  which  the  accounts  are  all  on  one 
side,  but  are  very  complicated  and  intricate,'  or  where  discovery 
may  be  needed, ""^  or  where  the  equitable  remedy  is  more  con- 
venient,^ although  such  accounts  would  not  be  cognizable  in  the 
conunon-law  action,  as  not  existing  between  those  parties  by  and 
against  whom  account-render  will  lie. 

In  conmienting  upon  the  jurisdiction  of  equity  in  such  cases 
it  has  been  well  said  that  the  test  is:  Are  the  issues  so  numerous 
and  so  distinct  and  the  evidence  to  sustain  them  so  variant,  tech- 
nical and  voluminous  that  a  jury  is  incompetent  to  intelligently 
deal  with  them  and  come  to  a  just  conclusion?^  And  it  has 
also  been  observed,  with  equal  justness,  that  when  the  state  of 
accounts  between  the  parties  is  complicated  and  intricate,  or  is 
involved  with  third  parties,  when  to  do  justice  recjuires  methods 
of  investigation  peculiar  to  courts  of  ecjuity,  and  when  it  woukl 
be  very  difficult  for  a  jury  to  unravel  the  numerous  transactions, 
conditions  are  presented  which  are  usually  held  to  be  sufficient 
to  give  a  court  of  equity  jurisdiction.^ 

In  short,  the  jurisdiction  of  the  chancellor  covers  all  cases 
for  which  account  render  would  he,  besides  many  to  which  that 
action  did  not  extend. 

The  jurisdiction  in  ecjuity  depending  not  so  much  on  the 
absence  of  the  common-law  remedy  as  upon  its  inadequacy,  its 
exercise  is  a  matter  in  the  discretion  of  the  court;  in  other  words, 
the  court  will  take  upon  itself  to  say  whether  the  common-law 
remedy  is,  under  the  circumstances  of  the  case,  and  in  view  of 
the  conduct  of  the  parties,  sufficient  for  the  purposes  of  justice, 


1  Fowle  V.  Lawrason,  5  Pet.  495; 
Mitchell  V.  Manufac.  Co.,  2  Story, 
648;  Post  V.  Kimberly,  9  Johns.  470; 
Jones  V.  Bullock,  2  Dev.  Eq.  36S; 
Nelson  v.  Allen,  1  Yerg.  360;  Bruce  v. 
Burdet,  1  J.  J.  Marsh.  80;  Wilson  v. 
Mallctt,  4  Sand.  (S.  C.)  112;  Shirley 
V.  Goodnough,  15  Oreg.  642. 

2  Tliorne  v.  Towanda  Towing  Co., 
15  Fed.  Rep.  289;  O'Connor  v. 
Spaight,  1  Sch.  &  Lef.  305;  Penn  v. 
Ingles,' 82  Vt.  65;  Manion  r.  Manion, 
120  Ky.  1;  Black  v.  Boyd,  50  Ohio 

44 


St.  46;  Blodgett  v.  Foster,  114  Mich. 
688;  Cranford  v.  Walters,  61  X.  J. 
Eq.  284;  Holland  v.  Hallahan,  211 
Pa.  223. 

3  Yates  V.  Stuart,  39  W.  Va.  124. 

<  Johnston  r.  Price,  172  Pa.  427. 

5  Cranford  v.  Watters,  61  N.  J.  Eq. 
284;  De  Bevoise  r.  H.  &  W.  Co.,  67 
N.  J.  Eq.  472. 

*  Crown  Coal  and  Tow  Co.  v. 
Thomas,  177  111.  534;  Price  v.  Mid- 
dleton,  75  S.  C.  105. 


600 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


or  whether  the  interference  of  the  Court  of  Chancery  may  be 
properly  called  for  and  beneficially  applied.' 

Moreover,  where  there  is  a  duty  to  render  an  account,  e.  g., 
on  the  part  of  an  agent  or  steward,  and  discovery  is  required, 
a  bill  will  lie.2 

A  bill  in  equity  will  not  ordinarily  lie  on  behalf  of  an  agent 
against  his  principal,  where  the  ground  for  invoking  the  juris- 
diction is  discovery,  for  it  is  the  duty  of  the  agent,  and  not  that 
of  the  principal,  to  keep  the  accounts.''  But  where  the  accounts 
are  mutual,  or  complicated,  or  where  the  nature  of  the  employ- 
ment (as,  for  example,  that  of  a  steward)  is  such  that  money  is 
often  paid  in  confidence  without  vouchers,  .such  a  bill  will  lie." 

The  prevention  of  a  multiplicity  of  suits,  or  the  necessity  for 
discovery,  will  sustain  a  bill  for  an  account;^  although  it  has 
been  held  that  the  bill  depends  rather  upon  the  existence  of  a 
fiduciary  relation  than  on  the  need  of  discovery.^ 

485.  Plea  of  stated  account. 

It  has  been  already  observed  that  where  an  account  has  been 
settled  between  the  parties,  and  a  balance  struck,  the  remedy 
by  a  common-law  action  is  entirely  adequate,  and  there  is,  there- 
fore, no  occasion  for  the  exercise  of  the  equitable  remedy.    It 


1  See  Bierbower's  Appeal,  107  Pa. 
17;  North  Eastern  R.  Co.  v.  Martin, 
5  Phillips,  758;  South  Eastern  R. 
Co.  V.  Brogden,  3  MacN.  &  G.  23; 
Foley  V.  Hill,  2  H.  L.  Cas.  28;  Ander- 
son V.  Noble,  1  Drew.  143;  Bliss  ?\ 
Smith,  34  Beav.  508;  Pike  v.  Dickin- 
son, L.  R.  7  Ch.  61,  and  Great  West- 
ern Ins.  Co.  V.  Cunliffe,  9  Id.  525. 
See,  also,  Miller  v.  Kent,  16  Fed. 
Rep.  13;  (iaines  v.  The  City  of  New 
Orleans,  17  Id.  16  (particularly  the 
Ltter  case,  for  a  full  discussion  of  the 
general  subject);  Tateum  v.  Ross,  150 
Mass.  440;  Petrie  v.  Torrent,  88  Mich. 
43,  and  Upton  v.  Paxton,  72  la.  259; 
Miller  r.  Russell,  224  111.  68. 

2  Appeal  of  Clarke  et  al,  107  Pa. 
436;  Adams's  Doctrine  of  Equity, 
221;  Porter  i\  Young,  85  Va.  49; 
Hoke  v.  Davis.  33  W.  Va.  485;  Nash 
V.  Burchard.  87  Mich.  85. 


3  Wilson  V.  Mallett,  4  Sanf.  (S.  C.) 
112;  Smith  v.  Leveaux,  2  De  G.,  J.  & 
Sm.  1 ;  Dinwiddle  v.  Bailey,  6  Ves. 
136;  Lynch  v.  Willard,  6  Johns.  Ch. 
342. 

■*  See  Smith  v.  Leveaux,  2  De  G.,  J. 
&  Sm.  1 ;  Dinwiddle  v.  Bailey,  6  Ves. 
136;  Allison  ?•.  Herring,  9  Sim.  583; 
Ludlow  V.  Simond,  2  Ca.  Cas.  E.  1, 
39,  53;  Kerr  v.  The  Steamboat  Co.,  1 
Cheves  (2d  part),   189. 

5  See  Armstrong  v.  Gilchrist,  2 
Johns.  Ch.  424;  Rathbone  v.  War- 
ren, 10  Johns.  587;  King  v.  Baldwin, 
17  Id.  384;  Story's  Eq.  §  456;  Daniel's 
Ch.  Prac.  576.  The  former  is  the 
basis  of  the  decree  for  an  account  in 
granting  an  injimction  to  restrain 
waste.  See  Lippincott  v.  Barton,  42 
N.  J.  Eq.  272. 

s  Marvin  r.  Brooks,  94  N.  Y.  71; 
Coggswell  V.  Griffith,  23  Neb.  334. 


CH.  IV  ]  ACCOUNT,    PARTITION,    ETC.  691 

neces^drily  follows  that  a  plea  of  stated  account  will  l)c  a  bar 
to  a  bill  for  an  account.  The  plea  is  good  as  to  discovery  as  well 
as  to  relief.  In  referring  such  a  case  to  a  master,  it  is  usual  to 
direct  that  if  he  finds  any  account  stated  he  shall  not  disturb  it.' 
What  will  constitute  a  stated  account  is  sometimes  a  difficult 
fjuestion,  and  depends,  as  a  general  rule,  upon  the  circumstances 
of  the  particular  case.  It  is  not  necessary  that  the  account, 
alleged  to  be  a  stated  account,  should  be  signed  by  the  parties. 
Acquiescence  may  be  proved  by  other  evidence;  and  sometimes 
is  presumed  from  conduct.  Keeping  an  account  for  a  length  of 
time  without  objection,  may  justify  a  presumption  of  acquies- 
cence.^ But  such  delay  is  only  one  of  many  elements  to  be  taken 
into  consideration;  and  the  presumption  to  which  it  gives  rise  is 
liable  to  be  rebutted.^ 

486.  Leave  to  surch.irge  and  falsify. 

A  stated  account  may  be  reopened  for  fraud,  or  for  error  in 
particular  items.^  In  such  cases  the  court  will  sometimes  direct 
the  whole  account  to  be  reopened;^  in  other  cases  the  com- 
plainant will  be  granted  leave  to  surcharge  and  falsify.*^ 

To  surcharge  is  to  show  that  a  proper  credit  has  been  omitted; 
to  falsify  is  to  show  that  an  improper  chai'ge  has  been  inserted.''' 
For  the  ])urpose  of  surcharging  or  falsifying  an  account,  the 
erroneous  items  nmst  be  specified  in  the  pleadings.  Hence, 
where  there  is  a  mere  bill  for  an  account,  in  which  no  specific 
errors  are  pointed  out,  and  a  plea  of  a  stated  account  is  put  in, 
the  complainant  must  amend  his  bill,  and  charge  either  fraud 

1  Weed  V.  Small,  7  Paige  Ch.  57.3;  3  See  Williams  v.  Savage  Mfg.  Co., 

Bullock  V.  Boyd,  4  Edw.  Ch.  29.3;  1  Md.  Ch.  306;  Rhyne  v.  Love,  98 

Dial's  Ex'rs  v.  Rogers,  4  Dess.  175;  N.  C.  486. 

Adams's  Doct.  of  Eq.  226.  «  Conville    v.   Shook,    144    N.    Y. 

•-!  Daniel's  Chan.  Prac.  670;  Irvine  686. 

V.  Young,  1  Sim.  &  Stu.  333;  Willis  s  See  Bankhcad  v.  AUoway,  6  Cold. 

V.  Jernegan,  2  Atk.  251;  Sherman  v.  56. 

Sherman,    2    Vern.    276;    Tickel    v.  « Slee  p.  Bloom,  5  .Johns.  Ch.  366; 

Sliort,  2  Ves.  Sr.  239;  Thompson  v.  20  Johns.  669;  Barrow  v.  Rhinclan- 

Fisher,  13  Pa.  313;  Porter  r.  Patter-  der,    1    Johns.    Ch.    550;    Johnson's 

son,  15  Id.  229;  Beers  v.  Reynolds,  Ex'rs  v.  Ketchum,  4  N.  J.  Eq.  364; 

12  Barb.  28S;  Dows  v.  Durfeo,  10  Id.  Botifeur  v.  Weyman,  1  McCord  Ch. 

213;  Coopwood   v.   Bolton,   26  Miss.  156;  Lee's  Adm'rs  v.  Reed,  4  Dana, 

212;  Brown  v.  Vandyke,  8  N.  J.  Eq.  109;  Roberts  v.  Totten,  8  Eng.  609. 

795;  Ogdcn  v.  Astor,  4  Sand.  (S.  C.)  ^  Pit  v.  Cholmondeley,  2  Ves.  Sr 

311;  Lupton   v.  Jancy,   13  Pet.  3S1;  565. 
Tuggle  V.  Minor,  76  Cal.  96. 


692 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


or  particular  errors.  If,  however,  the  bill  in  the  first  instance 
points  out  particular  errors,  these  must  be  denied  by  averments 
in  the  plea,  as  well  as  by  answer  in  support  of  the  plea.^ 

In  this  country  the  account  can  only  be  opened  in  the  items 
specifically  pointed  out;  ^  but  in  England  the  doctrine  has  been 
pushed  to  the  extent  of  holding  that  where  an  account  has  been 
surcharged  and  falsified  in  one  or  more  items,  the  complainants 
can  then  go  on  and  surcharge  and  falsify  it  at  large. 

A  bill  to  impeach  an  account  must  be  filed  in  a  reasonable 
time.^ 

487.  Partition  ;  origin  of  jurisdiction  of  chancery. 

The  jurisdiction  of  Courts  of  Chancery  in  cases  of  Partition 
of  Land  owes  its  origin  to  the  inadequacy  of  the  remedies  which 
the  common  law  afforded  to  joint  owners  who  were  desirous  of 
severing  the  joint  ownership.  This  jurisdiction  w^as  assumed 
some  time  about  the  reign  of  Elizabeth;^  and  became  so  well 
established  both  in  England  and  in  the  United  States,  that  to 
invoke  this  equitable  remedy  has  become  a  matter  of  right  and 
not  of  mere  grace. ^ 


1  Daniel's  Chan.  Prac.  374,  691. 

2  See  Chappedelaine  v.  Deche- 
naux,  4  Cranch,  306;  Consequa  v. 
Fanning,  3  Johns.  Ch.  587;  Nourse 
V.  Prime,  7  Id.  69;  PhilHps  v.  Bel- 
den,  2  Edw.  Ch.  1;  Troup  v.  Haight, 
Hopk.  Ch.  539;  Bullock  i-.  Boyd,  1 
Hoff.  Ch.  294;  Redman  v.  Green,  3 
Ired.  Eq.  54;  Cover  v.  Hall,  3  Har. 
&  J.  43;  Lilly  r.  Kroesen,  3  Md.  Ch. 
83;  Williams  v.  The  Savage  Mfg.  Co., 
1  Id.  306;  Freeland  v.  Cocke,  3  Manf. 
352;  Compton  r.  Greer,  2  Dev.  Eq. 
93. 

3  Lupton  V.  Janey,  13  Pet.  381; 
Baker  v.  Biddle,  Baldwin,  418; 
Ellison  V.  Moffatt,  1  Johns.  Ch.  46; 
Mooers  v.  White,  6  Id.  360,  370;  Dex- 
ter V.  Arnold,  2  Sumn.  108;  Boiling 
V.  Boiling,  5  Munf.  334;  Randolph  v. 
Randolph,  2  Call,  537;  Gregory's 
Ex'rs  V.  Forrester,  1  McCord  Ch.  318; 
Ex'rs  of  Radcliffe  v.  Wightman,  Id. 
408;  Hutchins  v.  Hope,  7  Gill,  119; 


Chesson  v.  Chesson,  8  Ired.  Eq.  141. 
See,  also,  Botifeur  v.  Weyman,  1  Mc- 
Cord Ch.  156;  Ogden  v.  Astor,  4 
Sandf.  (S.  C.)  311;  Richardson  v. 
Gregory,  126  111.  166. 

4  1  Spence's  Eq.  654. 

5  See  Baring  v.  Nash,  1  V.  &  B. 
552;  Parker  v.  Gerard,  Amb.  236; 
Wood  r.  Little,  35  Me.  107;  Han- 
son V.  WMllard,  12  Id.  142;  Bailey 
r.  Sisson,  1  R.  I.  233;  Wiseley  v. 
Findlay,  3  Rand.  361;  Castleman  v. 
Veitch,  Id.  598;  Otley  r.  Mc Alpine's 
Heirs,  2  Gratt.  340;  Allen  v.  Barkley, 
1  Speer  Eq.  264;  Oldhams  r.  Jones,  5 
B.  Mon.  458;  Holmes  v.  Holmes,  2 
Jon.  Eq.  334;  Wright  v.  Marsh,  2 
Greene  (Iowa),  94;  Howey  v.  Goings, 
13  111.  95;  Donnell  v.  Mateer,  7  Ired. 
Eq.  94.  But  in  Georgia  prior  to  the 
"  Uniform  Procedure  "  Act  of  1887  it 
would  seem  that  a  bill  for  partition 
in  equity  was  entertained  only  when 
some  peculiar  circumstances  existed 


CH.  IV.]  ACCOUNT,    PARTITION,    ETC.  ()93 

It  is  well  known  that  at  common  law  the  writ  of  partition 
existed  only  where  the  joint  ownership  arose  by  operation  of 
the  law ;  and  was  therefore  confined  to  the  single  case  of  tenancy 
in  co-parcenary.  As  the  law  created  that  tenancy,  it  was  thought 
reasonable  that  the  law  should  also  furnish  the  means  for  its 
severance.  By  Statutes  of  ol  Henry  VIII.,  c.  1,  and  32  Id.,  c.  32, 
the  remedy  was  extended  to  the  cases  of  joint  tenants  and  tenants 
in  common.  The  partition  of  copyhold  lands  was  effected  by  a 
plaint  in  the  Lord's  Court  in  the  nature  of  a  writ  of  partition.^ 

488.  Disadvantages  of  proceeding  at  common  law ;  clianges 
by  statute  in  tlie  United  States. 

The  principal  disadvantages  of  the  common-law  action  were 
two.  In  the  first  place,  only  the  parties  in  possession  could  be 
bound  by  the  judgment,  and  consequerltly  estates  in  remainder 
or  contingency  were  not  and  could  not  be  affected  thereby.  In 
the  second  place,  as  the  judgment  was  for  a  division  according 
to  the  titles  proved,  it  was  incumbent  upon  the  complainant  to 
prove  the  defendants'  titles  as  well  as  his  own,  which  was  usually 
difficult,  and  sometimes  impossible,  to  do.  Moreover,  the  judg- 
ment of  a  conmion-law  court  could  not  be  conveniently  moulded 
to  meet  the  exigencies  of  each  particular  case. 

In  consequence  of  these  disadvantages,  and  of  the  superiority 
of  the  ecjuitable  remedy,'the  writ  of  partition  and  the  plaint  were 
abolished  in  England  by  statute.- 

In  nearly  all  of  the  United  States  the  partition  of  real  property 
is  the  subject  of  express  statutory  enactments.  In  some  states 
the  remedy  is  by  petition,  the  common-law  writ,  in  many  of 
them,  existing  concurrently.^  In  others,  the  connnon-law  action 
has  been  freed  from  its  disadvantages,  and  rendered  more  ef- 
fective and  available.'*  Partition  of  decedents'  estates  is  also 
effected  in  some  states  by  probate  courts  and  similar  tribunals. 
In  many  of  the  states,  however,  the  remedy  by  bill  in  equity 
also  prevails,  and  from  its  many  advantages  must  continue  to 
be  a  favorite  method  of  effecting  a  division  of  real  property  \)c- 
tween  joint-owners. 

which  rendered  the  common-law  rem-  with.     Coleman  7).  Coleman,   10  Pa. 

edy  inadequate.    Boggs  v.  Chambers,  100;  Latshaw's  Appeal,  122  Id.  142. 
9  Ga.  1;  Rutherford  i'.  Jones,  14  Id.  2  3  and  4  Will.  IV.,  c.  27,  §  3G. 

521.  3  See  1  Wash,  on  Real  Prop.  43:5. 

1  Adams's    Doct.     Eq.     220,     230.  *  See  Smith  v.  Smith,  10  Paige  Ch. 

The  right  to  partition  may  be  parted  470. 


094 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


489.  Advautages  of  mode  of  procedure  in  equity. 

For  in  equity  the  disadvantages  wiiich  were  attendant  upon 
the  coninion-law  action  do  not  exist. ^  Per.sons  who  have  hmited 
estates  may  become  parties  to  a  bill  for  partition,  and  the  estates 
of  such  parties  only  may  be  divided ;  or,  if  it  is  deemed  desirable, 
the  parties  in  remainder  or  reversion  may  be  brought  in,  and  the 
decree  will  then  be  binding  upon  them,  and  the  whole  estate  may 
be  divided."  Interests  of  infants  or  persons  not  in  esse  may  also 
be  bound. ^ 

In  proceedings  for  partition  in  equity  it  is  not  necessary  that 
the  complainant  should  set  forth  the  defendant's  title.  Indeed, 
discovery  as  to  this  title  is  frequently  a  part  of  the  relief  which 
the  complainant  desires,  and  to  which  he  is  entitled,  and,  if 
necessary,  the  reference  to  the  master  will  direct  that  the  de- 
fendant's title  be  ascertained.''  The  complainant,  however, 
must  show  his  own  title,  otherwise  the  bill  will  be  dismissed.'' 
And  he  must  show  that  the  connection  between  his  title  and 
that  of  the  defendant  is  such  as  to  entitle  him  to  a  partition  as 


1  The  advantages  of  an  equitable 
partition  are  summed  up  by  Chan- 
cellor Zabriskie  in  Hall  v.  Piddock, 
21  N.  J.  Eq.  314,  in  the  following 
language:  "The  peculiarities  of  an 
equitable  partition  are,  that  such  part 
of  the  land  as  may  be  more  advan- 
tageous to  any  party  on  account  of 
its  proximity  to  his  other  land,  or  for 
any  other  reason,  will  be  directed  to 
be  set  off  to  him  if  it  can  be  done 
without  injury  to  the  others;  that 
when  the  lands  are  in  several  par- 
cels, each  joint  owner  is  not  entitled 
to  a  share  of  each  parcel,  but  only  to 
his  equal  share  in  the  whole;  that 
where  a  partition  exactlj'  equal  can- 
not be  made  without  injury,  a  gross 
sum  or  yearl}'  rent  may  be  directed 
to  be  paid  for  owelty  or  equality  of 
partition  by  one  whose  share  is  too 
large  to  oth(n's  whose  shares  are  too 
small;  and  tiiat  when  one  joint- 
owner  has  put  improvements  on  the 
property,  he  shall  receive  compensa- 
tion for  his  improvements,  either  by 
having   the  part   on   which   the   im- 


provements are,  assigned  to  him  at 
the  value  of  the  land  without  the 
improvements,  or  by  compensation 
directed  to  be  made  for  them."  In 
this  case  an  injunction  was  granted 
in  a  bill  for  partition  in  equity  to  re- 
strain similar  proceedings  at  law, 
which  had  been  previously  instituted, 
solely  on  the  ground  of  the  superior- 
ity of  the  equitable  over  the  common- 
law  method  as  a  means  of  effecting 
a  just  division  among  the  parties. 
See,  also,  Donnell  v.  Mateer,  7  Ired. 
Eq.  9-4;  Fulton  v.  Miller,  192  Pa. 
62,  and  Carson  v.  Broady,  56  Neb. 
648. 

2Gaskell  v.  Gaskell,  6  Sim.  04:;: 
Holmes  v.  Fulton,  198  Pa.  270;  Duk  • 
V.  Hague,  107  Pa.  67;  notes  to  A ■•,..!• 
V.  Fairfax,  2  L.  Cas.  Eq.  468  (lt!i 
Eng.  ed.). 

3  Wills  V.  Slade,  6  Ves.  498;  Ga.s- 
kell  V.  Gaskell,  6  Sim.  643. 

4  Jope  V.  Morshead,  6  Beav.  213; 
Agar  V.  Fairfax,  17  Ves.  533. 

5  Parker  v.  Gerard,  Amb.  236; 
Jope  V.  Morshead,  6  Beav.  213. 


CH.  IV.] 


ACCOUNT,    PARTITION,    ETC. 


against  the  latter.^  A  bill  for  a  partition  cannot  be  made  the 
means  of  trying  a  disputed  title ;  -  although  it  seems  that  a  ques- 
tion as  to  title  may  be  decided  by  the  court  with  consent  of 
the  parties.^  Unless  the  title  is  undisputed,  the  bill  must  be 
dismissed,  or  else  retained  until  the  title  has  been  settled  at  law.'* 
But  this  rule  applies  only  to  disputes  as  to  legal  titles;  and  wliere 
the  dispute  involves  an  equitable  element,  the  court  has  jurisdic- 
tion over  the  whole  matter.^ 

Partition  may  be  had  of  an  equitable  estate ;  ^  or  of  an  incor- 
poreal hereditament;^  and  the  surface  can  be  separated  from 
the  underlying  minerals,  and  a  distinct  title  made  to  each.* 

All  persons  entitled  to,  or  claiming  an  interest  in,  the  land, 
whether  legal  or  equitable,  are  proper  parties  to  a  bill  for  pai'ti- 
tion.  It  is  only,  however,  by  a  person  entitled  to  possession  that 
a  bill  for  partition  can  be  filed;  although,  as  was  stated  above, 
the  owners  of  expectant  estates  may  be  made  parties,  and  their 


■    1  Ramsay  v.  Bell,  3  Ired.  Eq.  209. 

2  Slade  V.  Barlow,  L.  R.  7  Eq.  296; 
Bolton  V.  Bolton,  Id.  298,  n.;  Potter 
V.  Waller,  3  De  G.  &  Sm.  410;  Giffard 
V.  Williams,  L.  R.  5  Ch.  546;  Sanders 
V.  Devereux,  19  U.  S.  App.  630; 
Hitchcox  V.  Morrison,  47  W.  Va.  206; 
Clark  V.  Roller,  199  U.  S.  541. 

:<Burt  I'.  Hellyar,  L.  R.  14  Eq. 
160. 

*  Castleman  v.  Veitch,  3  Rand.  598; 
Straughan  r.  Wright,  4  Id.  493; 
Smith  V.  Smith,  10  Paige  Ch.  470; 
Steedman  ?".  W^eeks,  2  Strob.  Eq.  145; 
Albergottie  v.  Chaplin,  10  Rich.  Eq. 
428;  Pell  v.  Ball,  1  Id.  361;  Collins 
V.  Dickinson;  1  Hay,  240;  Davis  v. 
Davis,  2  Ired.  Eq.  607;  Garrett  v. 
White,  3  Id.  131;  Wilkin  r.  Wilkin, 
1  Johns.  Ch.  Ill;  Manners  v.  Man- 
ners, 2  N.  J.  Eq.  384;  Bruton  v. 
Rutland,  3  Humph.  435;  Foust 
V.  Moorman,  2  Carter,  17;  Boone  c. 
Boone,  3  Md.  Ch.  497;  Corbitt  ?;. 
Corbitt,  1  Jon.  Eq.  114;  Walker  v. 
Laflin,  26  111.  472;  Williams  v.  W^ig- 
gand,  53  Id.  233;  Gourley  v.  Wood- 
bury, 43  Vt.  89;  Hassam  v.  Day,  39 
Miss.   392;   Dewit   v.   Ackerman,    17 


N.  J.  Eq.  215;  but  see  Cuyler  v.  Fer- 
rill,  1  Abb.  (U.  S.)  169;  Morenhout 
V.  Higuera,  32  Cal.  289;  Bollo  v. 
Navarro,  33  Id.  459;  Adams's  Doct. 
Eq.  458,  note  (6th  Am.  ed.);  Sey- 
mour V.  Ricketts,  21  Neb.  240;  Pierce 
V.  Rollins,  83  Me.  172;  Eagle  v. 
Franklin,  71  Ark.  544;  Ellis  r.  Feist, 
65  N.  J.  Eq.  548. 

5  Donnell  v.  Mateer,  7  Ired.  Eq.  94; 
Foust  V.  Moorman,  2  Carter,  17; 
Carter  v.  Taylor,  3  Head,  30;  Lever- 
ton  V.  Waters,  7  Cold.  20;  Longwell  v. 
Bentley,  23  Pa.  99;  Hayes's  Appeal, 
123  Id.  110;  Obert  v.  Obert,  10  N.  J. 
Eq.  98;  Vreeland  v.  Vreeland,  49  N.J. 
Eq.  322;  Hankins  v.  Layne,  48  Ark. 
544;  Morgan  v.  Mueller,  107  Wis. 
241. 

6  Hitchcock  V.  Skinner,  1  HoiT.  Cli. 
21;  Mylin  v.  King,  139  Ala.  ;;i'.): 
Hanna  v.  Clark,  189  Pa.  334. 

'  Bailey  v.  Sisson,  1  R.  I.  '2'.V.); 
W'arren  v.  W^estbrook  Mfg.  Co.,  S.S 
Me.  58.  See  Ellis  v.  Hill,  162  111. 
557. 

8  Ames  V.  Ames,  160  111.  599. 
But  see  Hall  v.  Vernon,  47  W.  \j.. 
295. 


mc 


ACCOUNT,    PARTITION,    ETC. 


[part  Hi. 


interests  will  be  bound.  Therefore,  a  bill  cannot  be  maintained 
by  a  joint  tenant,  or  tenant  in  eonnnon,  in  remainder  or  reversion. 
Nor  can  he,  after  he  has  filed  his  l)ill,  put  himself  in  a  better  posi- 
tion, by  acquiring  a  title  in  possession  and  amending  his  bill.' 

The  owners  of  an  estate  subject  to  a  mortgage  may  have  par- 
tition in  equity;  in  which  case  the  equity  of  redemption  only 
is  divided.^ 

Judgment-creditors  and  mortgagees  of  tenants  in  common 
are  not  proper  parties  to  a  bill  for  partition ;  ^  although  it  has 
been  decided  in  England  that  a  mortgagee  of  an  undivided 
share  may  maintain  a  bill  for  foreclosure  and  partition. ■*  Where 
the  defendants  are  desirous  that  there  shall  be  no  partition  of 
their  several  shares,  the  partition  may  be  confined  to  the  aliquot 
share  of  the  complainant.^ 


490.  Mode  of  iiiakiii^  partition  in  equity. 

The  method  of  making  a  partition  in  ecjuity  is  by  first  as- 
certaining the  rights  of  the  several  persons  interested,  and  then 
issuing  a  commission  to  make  the  partition  reciuired.  If  the  pro- 
portions to  which  the  different  parties  are  entitled  appear  upon 
the  pleadings,  no  reference  to  a  master  to  ascertain  them  is  neces- 
sary; otherwise,  such  a  reference  will  be  ordered.**  The  inter- 
locutory decree  directing  such  inquiries  generally  goes  on  to  order 
a  partition  to  take  place.'^  After  the  return  of  the  commission, 
and  the  confirmation  thereof  by  the  court,  the  partition  is  finally 
completed  by  mutual  conveyances  of  the  allotments  made  to  the 
several  parties.*  Sometimes,  instead  of  ordering  a  commission, 
the  court  may  make  a  declaration  that  the  estate  ought  to  be 
divided,  with  liberty  to  the  parties  interested  therein  to  bring  be- 
fore the  judge  at  chambers  proposals  for  a  partition.^ 

In  England  the  court,  in  some  cases,  instead  of  directing  con- 


1  Evans  v.  Bagshaw,  L.  R.  8  Eq. 
4G9;  I..  R.  ">  Ch.  340. 

2  Wotton  V.  Copeland,  7  Johns.  Ch. 
140. 

3  Sebring  v.  Mersereau,  9  Cow.  344; 
Harwood  v.  Kirby,  1  Paige  Ch.  469; 
Low  V.  Holmes,  17  N.  J.  Eq.  148; 
Speer  v.  Speer,  14  Id.  240;  Thrus- 
ton  r.  Minke,  32  M(l.  571;  Long's 
Appeal,  77  Pa.  lol.  Though  a  mort- 
gagee may  be  joined  when  it  is  nec- 


essary for  the  protection  of  his  in- 
terests. Whitton  V.  Whitton,  38 
N.  H.  135. 

4  Fall  V.  Elkins,  9  Week.  Rep.  861 
See  Watkins  v.  Williams,  3  MacN.  & 
G.  622. 

5  Hobson  V.  Sherwood,  4  Beav.  184. 
e  Daniel's  Ch.  Prac.  1121. 

?Id.  1123. 
s  Id.  1122. 
«  Clarke  v.  Clayton,  2  Giff.  333. 


CH.  IV.]  ACCOUNT,    PARTITION,    ETC.  C)97 

vcyaiices  of  the  several  shares,  has  declared  each  of  the  parties 
trustees  as  to  the  shares  allotted  to  the  others  of  them,  and  then 
vested  the  whole  trust  estate  in  a  single  new  trustee,  under  the 
Trustee  Act,  with  directions  to  convey  to  the  several  parties 
their  allotted  shares.'  Under  the  same  act,  an  infant  n^ay  be 
declared  trustee  of  such  portions  of  the  property  as  were  allotted 
to  the  other  parties.  Before  that  act,  where  the  legal  estate  to  a 
portion  was  vested  in  an  infant,  the  conveyances  were  respited 
until  he  came  of  age,  and  a  day  given  to  him  to  show  cause  against 
the  decree.-  In  some  of  the  United  States  the  decree  has,  either 
by  statute  or  by  judicial  decision,  the  effect  of  vesting  the  titles 
of  the  different  purparts  in  the  persons  respectively  entitled 
thereto,  without  the  necessity  of  a  conveyance.^ 

491.  Difficulties  of  making  partition  no  objection  to  a 
decree. 

The  inconvenience  or  difficulty  of  making  the  partition  is  no 
objection  to  a  decree.  Thus,  a  single  house  may  be  ordered  to 
be  divided;  and  in  one  case,  at  least,  this  division  is  said  to  have 
been  actually  effected  by  building  up  a  wall  in  the  middle  of  the 
house."*  It  need  scarcely  be  said,  however,  that  the  court  will, 
as  a  general  rule,  make  such  a  partition  as  will  best  preserve  th. 
value  of  the  property;  and  that  such  an  extreme  measure  as  the 
actual  division  of  a  house  would  not  be  resorted  to,  if  a  fair  par- 
tition could  be  made  in  any  other  way.^  Thus,  if  there  were 
three  houses  to  be  divided  among  three,  it  would  not  be  right  to 
divide  every  house,  for  that  would  be  to  spoil  every  house;  but 
some  recompense  is  to  be  made,  either  l)y  sum  of  money  or  rent, 
for  owelty  of  partition,  to  those  who  have  the  houses  of  less  value.*^ 
Moreover,  in  dividing  real  estate  the  convenience  of  the  different 
parties  in  interest  should  be  consulted.  Thus,  if  one  of  the 
parties  has  property  to  which  one  of  the  allotments  is  contiguous, 
and  there  is  another  allotment  not  contiguous,  that  would  be  a 
good  ground,  ccsterU  paribus,  for  allotting  that  particular  portion 

1  Shepherd  v.  Churchill,  25  Beav.  notes  to  Agar  v.  Fairfax,  2  Lead.  Cas. 
21.  Eq.  470   (4th   Eng.  ed.).     See,   also, 

2  House  V.  Falconer,  4  Dess.  86;  Wood  v.  Little,  35  Me.  107;  Scovil!.> 
notes  to  Agar  r.  Fairfax,  2  Lead.  Cas.  r.  Kennedy,  14  Conn.  339;  Smith  v. 
Eq.  474  (4th  Eng.  ed.).  Smith,   10  Paige  Ch.  470. 

a  See  Griffith  v.  Phillips,  3  (ir.  Cas.  »  Daniel's  Chan.  Prac.  1130. 

3S1.  «  See  Earl  of  Clarendon  v.  Hornby, 

*  Turner   v.   Morgan,    8   Ves.    143;       1  P.  Wms.  440. 


098 


ACCOUNT,    PATiTn'lON,    ETC. 


[part  hi. 


to  the  individual  to  whom  it  is  much  more  convenient  to  have  it 
than  the  other. •    A  mill  or  an  advowson  may  be  divided  by  giving 
to  the  parties  every  alternate  toll-dish  or  turn  of  the  church,  as  is 
done  in  the  common-law  writ.' 
t 

492.  Power  to  award  owelty. 

Courts  of  equity  have  power  to  award  owelty  in  partition, 
\\  hich  is  a  sum  of  money  or  a  rent  given  for  the  purpose  of 
equalizing  the  shares.-"'  For  the  same  purpose  one  purpart  may 
l)e  charged  with  a  servitude  or  easement  for  the  benefit  of  an- 
other.-*  This  owelty  could  not  have  been  granted  in  the  common- 
law  writ,  although  statutes  in  some  states  now  authorize  it  in 
such  actions.  Besides  awarding  owelty,  a  Court  of  Chancery 
may  order  an  account  where  one  joint  owner  appears  to  have 
received  more  than  his  share  of  the  rents  and  profits;^  and,  in 
proper  cases,  may  decree  an  allowance  for  money  expended  in 
improvements.^ 

493.  Power  to  order  a  sale. 

One  disadvantage  under  which  proceedings  for  partition  in 
equity  labored,  was  the  want  of  power  in  the  court  to  order  a 
sale  of  the  property."^  It  is  true  that  a  sale  might  have  Ixcii 
ordered  if  all  the  parties  who  were  sui  juris  desired  it;  and  this, 


1  Canning  r.  Canning,  2  Drew.  436; 
Hall  )'.  Piddock,  21  X.  J.  Eq.  314; 
Claude  i'.  Handy,  83  Md.  225. 

2  Dan.  Ch.  Prac.  1131. 

3  Smith  V.  Smith,  10  Paige  Ch.  470; 
Phelps  V.  Green,  3  Johns.  Ch.  302; 
CJraydon  v.  Graydon,  1  McMul.  Eq. 
()3;  Haywood  v.  Judson,  4  Barb.  (S. 
C.)  228;  Norwood  v.  Norwood,  4  liar. 
&  J.  112;  Warfield  v.  Warfield,  5  Id. 
4.')!»;  W>Tine  v.  Tunstall,  1  Dev.  Eq. 
23;  Cox  v.  Mc.Mullin,  14  Gratt.  82. 

*  Cheswell ;;.  Chapman,  38  N.  H.  17. 

sRozier  v.  Griffith,  31  Mo.  171; 
Leach  v.  Beattie,  33  Vt.  195;  Early 
r.  Friend,  16  Gratt.  21;  Hitchcock 
V.  Skinner,  1  Hoff.  Ch.  21 ;  Backler  r. 
Farrow,  2  Hill  Ch.  Ill;  Carter  v. 
Carter,  5  Munf.  108;  Holt  v.  Couch, 
125  N.  C.  456. 

8  Swan  r.  Swan,  8  Price,  518;  Town 
V.   Needham,   3   Paige  Ch.   553;  St. 


Felix  V.  Rankin,  3  Edw.  Ch.  :',::'-: 
ConkUn  v.  Conklin,  3  Sandf.  Ch.  M\ 
Green  v.  Putnam,  1  Barb.  (S.  C.)  500; 
Brookfield  v.  WiUiams,  2  N.  J.  Eq. 
341;  Obert  v.  Obert,  5  Id.  307; 
Doughady  v.  Crowell,  11  Id.  201; 
Hall  V.  Piddock,  21  Id.  314;  Respass 
r.  Breckenridge,  2  k.  K.  Marsh.  581; 
Louvalle  v.  Menard,  1  Gilm.  39; 
Sneed  v.  Atherton,  6  Dana,  276; 
Borah  r.  Archers,  7  Id.  176;  Noble 
V.  Tipton,  219  111.  182;  Donnor  v. 
Quartermas,  90  Ala.  164;  Fulton  r. 
Miller,  192  Pa.  62;  Dunavant  v. 
Fields,  68  Ark.  534;  Carson  v.  Broady, 
56  Neb.  648. 

7  It  may  be  remarked  in  this  con- 
nection that  it  has  been  held  in  Eng- 
land that  the  court  has  no  juris- 
diction to  decree  a  sale  of  personal 
cliattels,  held  in  strict  settlement, 
simply  on  the  ground  that  it  would 


CH.  IV.]  ACCOUNT,    PARTITION,    ETC.  699 

although  some  of  the  parties  were  infants,  provided  it  appeared 
that  it  would  be  advantageous  for  the  infant  that  a  sale  could 
take  place.  But  if  one  of  the  parties  sui  juris  objected,  no  sale 
should  take  place.  This  difficulty  was  in  England  obviated  by  a 
statute  passed  in  1868,  by  which  a  very  useful  power  was  con- 
ferred upon  the  court  to  order  sales  in  certain  cases. ^ 

In  most  of  the  United  States  the  courts  of  equity  have  power 
to  order  a  sale  in  partition. ^  Specific  performance  of  an  agree- 
ment to  divide  real  estate  will  be  enforced  in  chancery ;  and  this 
was  so  as  to  copyhold  lands  even  prior  to  the  passage  of  the  stat- 
ute extending  the  chancery  jurisdiction  in  partition  to  estates 
of  that  tenure.^ 

In  addition  to  the  jurisdiction  to  decree  partition  of  land, 
equity  can  partition  personalty.  This  could  not  be  done  at  law ; 
for  the  only  rtnnedy  which  a  co-owner  of  personal  property  could 
invoke  against  a  fellow-owner,  was  an  action  for  the  injury  to  or 
destruction  of  the  chattel.  In  equity  there  is  jurisdiction  to  di- 
vide personalty,  and  to  order  a  sale  where  division  is  impossible.'* 

494.  Nature  of  Dower. 

Dower  is  the  right  of  a  married  woman  to  have  assigned  to  her, 
after  the  death  of  her  husband,  one-third  of  the  land  of  which 
he  was  seised  in  fee  simple  or  fee-tail  at  any  time  during  coverture, 
and  which  his  issue,  if  any,  might  have  inherited ;  and  to  enjoy 
the  land  thus  assigned  to  her  for  life. 

This  right  accrues  immediately  upon  the  death  of  the  hus- 
band; but  the  widow  cannot  enter  upon  any  specific  part  of  the 
real  estate  until  the  dower  has  been  assigned.^    It  is  the  duty 

be  for  the  benefit  of  all  parties  in-  among  tenants  in  common  of  a  term; 

terested.    D'Eyncourt  v.  Gregory,  L.  and  the  court  refused  to  order  a  sale 

R.   3  Ch.  D.  635.     As  to  power  of  of  the  reversion  of  which  one  of  the 

English  Court  of  Chancery  to  order  term-tenants  was  the  sole  owner. 
sale,   see  Moore  v.   Blagge,   91   Tex.  3  See  2   Lead.   Cas.   Eq.   468   (4th 

151;  Kalteyer  v.  Wipff,  1)2  Id.  673.  Eng.  ed.). 

1  31  and  32  Vict.,  c.  40.  See  notes  *  Low  v.  Holmes,  17  N.  J.  Eq.  148; 
to  Agar  V.  Fairfax,  2  Lead.  Cas.  Eq.  Wetmore  v.  Zabriskee,  2!)  Id.  62; 
477  (4th  Eng.  ed.).  Robinson  v.  Dickey,   143  Ind.   205- 

2  See  American  note  to  Agar  v.  208,  Pomeroy's  Eq.  §  1391. 
Fairfax,  2  Lead.  Cas.  Eq.  915  (4th  »  In  some  of  the  United  States  the 
Am.  ed.);  Donnor  v.  Quartermas,  90  widow  has  the  right,  by  statute,  to 
Ala.  164;  Williams  v.  Coombes,  88  hold  and  enjoy  the  mansion-house 
Me.  183.  Jameson  v.  Hayward,  106  \intil  her  dower  is  assigned  to  her. 
Cal.  682,  is  interesting  in  this  con-  It  will  be  remembered,  also,  that  by 
nection.     It  was  a  case  of  partition  Magna  Charta  the  widow  had  a  right 


700  ACCOUNT,    PARTITION,    ETC.  [PART  III. 

of  the  heir  to  make  the  assignment  of  dower.  No  writing  fo. 
this  purpose  was  necessary;  a  parol  assignment,  if  accepted  by 
the  widow,  was  good. 

495.  Remedy  by  bill  in  equity. 

In  case  the  heir  neglected  or  refused  to  assign  the  dower,  the 
widow  had  her  remedy  at  common  law,  by  the  writ  of  right  of 
dower,  and  by  the  writ  of  dower  unde  nUiil  kahet;  ^  but  in  ad- 
dition to  these,  the  remedy  by  bill  in  equity  was  invoked  at  a 
very  early  period.  The  first  exercise  of  this  jurisdiction  of  the 
chancellor  to  assign  dower  appears  to  have  occurred  in  the  reign 
of  Elizabeth;  but  for  many  years  the  reported  cases  were  not 
numerous,  and  there  seems  to  have  been  much  doubt  as  to  the 
grounds  upon  which  this  jurisdiction  was  assumed.-  The  relief 
was  at  one  time  considered  to  be  of  an  auxiliary  character.  Thus, 
as  the  title  papers  of  an  estate  were  in  the  hands  of  the  heir, 
it  was  frequently  necessary  for  the  widow  to  have  access  to  them. 
or,  at  all  events,  to  be  informed  of  their  contents,  in  order  to  u 
full  knowledge  of  her  rights.  This  end  was  accomplished  by  a 
bill  of  discovery,  which  was  entertained  for  the  purpose  of  rn,;- 
bling  the  widow  sul)se(iuently  to  assert  her  right  at  law.  Bills 
were  also  entertained  for  the  purpose  of  removing  impediments 
in  the  way  of  the  wife's  legal  action ;  and  the  jurisdiction  thus 
acquired  w^as,  upon  the  familiar  principles  of  equity,  extended 
to  afford  complete  relief.^  The  jurisdiction,  however,  was  not 
assumed  without  hesitation;  and  in  two  early  cases  the  bills 
were  dismissed  because  there  was  no  impediment  in  the  way  of 
the  complainant's  proceedings  at  law.'*  The  scruples  against 
exercising  this  jurisdiction  were,  however,  eventually  overcome 
in  consequence  of  the  many  excellent  reasons  which  existed  in 
its  favor.  These  reasons  were  the  disadvantages  under  which 
the  common-law  remedies  labored,  the  fact  that  in  some  cases 
the  right  to  dower  was  recognized  solely  in  courts  of  equity,  and 
the  prevention  of  multiplicity  of  suits. 

to  remain  in  the  mansion-house  for  number  of  the  United  States  answers 

forty  days  after  her  husband's  death.  most  nearly  to  this  writ.     4  Kent's 

This  was  called  the  widow's  quaran-  Com.  70. 

tine.     Similar  provisions  in  favor  of  2  2  Scribner  on  Dower,  134. 

the  widow  are  found  in  the  statute  3  Id.,    134. 

books  of  most  of  the  states.     See  4  <  Shute   v.   Shute,    Prec.   Ch.    Ill; 

Kent's  Com.  62.  W  aUis  v.  Everard,  3  Ch.  Rep.  161; 

1  The  common-law  action  in  a  large  J  Scribner  on  Dower,  135. 


CH.  IV.] 


ACCOUNT,    PARTITION,    ETC. 


701 


Such  reasons  for  the  exercise  of  chancery  jurisdiction  in  cases 
of  dower  existed  in  this  country  as  well  as  in  England ;  and  we 
accordingly  find  the  courts  in  the  United  States  entertaining 
bills  for  dower  at  an  early  date.^  It  was,  indeed,  at  one  time 
doubted  in  New  Jersey  whether  the  common-law  courts  did  not 
possess  exclusive  jurisdiction  upon  the  subject  of  dower;  ^  but 
this  doubt  has  now  been  settled  in  favor  of  the  Court  of  Chan- 
cery, and  the  concurrent  jurisdiction  of  that  tribunal  with  the 
common-law  courts  fully  established. •''  Indeed,  it  may  be  said 
in  the  language  of  Chancellor  Kent,  that  ''the  jurisdiction  of 
chancery  over  the  claim  of  dower  has  been  thoroughly  examined, 
clearly  asserted,  and  definitely  established."  ■* 

496.  Disadvantages  of  the  proceeding  at  common  law. 

The  disadvantages  of  the  conunon-law  procedure  were  numer- 
ous. In  addition  to  the  circumstances  that  no  discovery  could 
be  had  and  no  account  taken,  there  was,  moreover,  the  inability 
to  recover  damages,  a  defect  which  enabled  the  heir,  by  refusing 
to  assign  dower,  to  enjoy  all  the  me.me  profits  until  judgment  was 
actually  recovered  by  the  widow.^  This  defect,  indeed,  was 
remedied,  so  far  as  the  writ  of  dower  unde  nihil  habet  was  con- 
cerned, by  the  Statute  of  Merton,^  by  which  it  was  provided  that 
the  heir  should  yield  damages  from  the  death  of  the  husband  to 
the  date  of  the  judgment.  But  this  statute  did  not  apply  to  the 
writ  of  right  of  dower;  and  even  the  writ  of  dower  unde  nihil 
habet  did  not  furnish  relief  in  all  cases,  because,  by  the  language 
of  the  statute,  recovery  could  only  be  had  where  the  husband 
died  seised.^  If,  therefore,  the  husband  had  aliened  during  his 
lifetime,  no  damages  could  be  recovered  against  his  alienee.^ 


497.  Advantages  of  the  procedure  in  equity. 

In  ec}uity,  as  has  been  already  stated,  discovery  could  be  had 


1  Herbert  v.  Wren,  7  Cranch,  370; 
Hazen  v.  Thurber,  4  Johns.  Ch.  604; 
Svvaine  v.  Ferine,  5  Id.  482;  Jones  r. 
Powell,  6  Id.  194;  Badgley  v.  Bruce,  4 
Paige  Ch.  98;  2  Scribner  on  Dower, 
142. 

-  Harrison  v.  Eldridge,  G  N.  J.  Eq. 
:v.r2. 

s  Hartshorne  v.  Hartshorne,  2  N.  J. 
Eq.  349;  2  Scribner  on  Dower,  143; 
Beeman  v.  Kitzman,  124  la.  86. 


*4  Kent's  Com.  71. 

5  2  Scribner  on  Dower,  656. 

6  20  Hen.  III.,  c.  1.  See  1  Wash- 
burn on  Real  Prop.  231,  232. 

7  2  Scribner  on  Dower,  656. 

s  Whether  damages  could  be  re- 
covered against  the  alienee  in  the 
case  of  a  demand  being  made,  seems 
to  be  doubtful.  2  Scribner  on  Dower, 
666. 


702 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


of  all  things  which  were  necessary  to  ascertain  the  widow's  right 
of  dower  and  the  extent  thereof;  and,  moreover,  if  any  difficulty 
or  impediment  existed  in  the  way  of  the  assertion  of  her  legal 
right,  the  Court  of  Chancery  might  interpose  to  remove  it. 

498.  Account  of  mesne  profits. 

To  what  extent  the  Court  of  Chancery  would  give  an  account 
of  the  mesne  profits,  seems  to  be  a  disputed  question  in  England. 
It  has  been  contended,  on  the  one  hand,  that  in  giving  damages, 
courts  of  equity  are  not  confined  by  the  terms  of  the  statute  of 
Merton,  but  award  the  same  independently  of  the  provisions  of 
that  statute,  and,  consequently,  in  cases  to  which  that  statute 
does  not  extend.^  On  the  other  hand,  it  is  said  that  the  power 
of  the  chancellor  is  regulated  by  that  statute,  and  that  damages 
are  not  given  as  against  the  alienee  of  the  husband.' 

In  America  it  has  been  stated  by  high  authority  that,  in  equity, 
the  course  is  universally  to  give  the  widow  an  account  of  the 
rents  and  profits  from  the  death  of  the  husband ;  ^  and  decisions 
to  that  effect  have  been  made  in  several  states.'* 

But  in  other  states  a  different  conclusion  has  been  reached.^ 

Whatever  the  rule  on  this  subject  may  be,  the  superior  facili- 
ties which  courts  of  equity  have  for  ascertaining  the  rents  and 
profits,  and  taking  an  account,  must  be  considered  as  one  of  the 
reasons  for  their  assumption  of  jurisdiction  in  cases  of  dower. 

Moreover,  there  are  some  cases  in  which  equity  will  un- 
doubtedly give  damages,  although  a  court  of  law  would  not. 
At  law,  if  the  tenant  died  after  judgment,  and  before  damages 
were  assessed,  the  widow  lost  her  damages;  and  if  the  widow 
died  before  damages  were  assessed,  her  representatives  could 
not  claim  them.  But  a  court  of  equity  will,  in  such  cases,  give 
relief.^ 


1  Curtis  V.  Curtis,  2  Bro.  C.  C. 
260;  1  Roper,  Husb.  and  Wife,  453, 
454. 

2  Mundy  v.  Mundy,  2  Ves.  Jr.  122; 
4  Bro.  C.  C.  294;  1  Roper,  Husb.  and 
Wife,  454,  note;  2  Scribner  on  Dower, 
685,  686. 

3  Chase's  Case,  1  Bland  C"h.  206. 
See,  also.  Wells  v.  Beall,  2  r;ill  &  J. 
468;  Darnall  v.  Hill,  12  Id.  38S. 

*  Keith   V.  Trapier,    1    Bailey  Eq. 


63;  Hey  ward  v.  Cuthbert,  1  McCord, 
386;  Turner  v.  Morris,  27  Miss.  733. 

5  Tod  V.  Baylor,  4  Leigh,  498; 
Kendall  v.  Honey,  5  Mon.  282;  Gol- 
den V.  Maupin,  2  J.  J.  Marsh.  236. 
See  2  Scribner  on  Dower,  687,  692, 
where  the  authorities  are  examined. 

« Story's  Eq.  Jurisp.  §625.  See 
for  a  case  in  which  the  relief  directed 
to  be  given  consisted,  in  part,  of  an 
assignment  of  dower  in  a  portion  of 


CH.  IV.]  ACCOUNT,    PARTITION,    ETC.  703 

499.  Multiplicity  of  suits  avoided. 

By  proceedings  in  equity,  moreover,  a  multiplicity  of  suits  is 
frequently  prevented. 

Thus,  it  sometimes  happens  that,  before  obtaining  an  assign- 
ment of  dower,  it  is  necessary  that  a  term  of  years  should  be 
got  out  of  the  way  as  a  satisfied  term,'  or  a  fraudulent  convey- 
ance set  aside, ^  or  conflicting  rights  to  the  subject-matter  of  the 
liill  settled.^ 

This  preliminary  relief,  as  well  as  the  assignment  of  dowci- 
itself,  can  be  obtained  in  equity  in  one  suit,  to  which  all  those 
who  are  interested  may  be  made  parties,  and  thus  all  rights  and 
interests  may  be  settled  by  a  decree.  Other  illustrations  of  this 
double  relief  may  be  found  in  those  cases  in  which  bills  have 
been  filed  by  widows  to  redeem  encumbered  estates,  and  for 
dower  therein.'* 

600.  Dower  out  of  equitable  estates. 

Another  reason  for  the  assumption  by  the  Court  of  Chancer}' 
of  jurisdiction  in  matters  of  dower,  was  the  fact  that  in  some 
cases  the  title  of  the  husl)and  to  the  property,  and  consequently 
that  of  the  widow  to  her  dower  therein,  was  cognizable  solely 
in  equity,  and  there  was,  therefore,  a  comph^te  failure  of  justice 
in  courts  of  law.  Such  was  the  case  when  dower  was  claimed 
out  of  equitable  estates,  and  out  of  equities  of  redomption,  and 
in  some  other  instances.  In  such  cases  the  jurisdiction  of  court ;5 
of  equity,  in  the  assignment  of  dower,  is  exclusive. 

It  is  true  that  in  England,  ])i'ior  to  the  statute  of  3  and  4  ^^'ill. 
IV.,  c.  105,  dower  could  not  have  been  claimed  out  of  ('(|uilabli- 
estates,  and  therefore,  as  eriuity  follo\\'s  the  law,  a  Court  of  Chan- 
cery would  not  allow  a  claim  for  dower  where  a  legal  right  thf^-clM 
could  not  have  been  established.  But  in  this  country  the  genei'al 
rule  is,  perhaps,  the  other  way,  and  dower  is  allowed  out  of 

''•le  land,  and,  in  part,  of  damages  by  Tate,   1  Dev.  &  Bat.  Eq.  22;  I'cdy 

way    of    compensation    for    loss    of  i'.  Petty,  4  B.  Mon.  215. 

(lower  in   another  portion,  Jones   v.  3  Goodburn  i>.  Stevens,  1  Md.  (  li. 

Van  Doren,   130  V.  S.  (191-692.  Dec.  420;  5  Gill,  1. 

1  See  remarks  of  Lord  Hardwicke  <  Farwell  v.  Cotting,  8  Allen,  211; 
in  Dormer  v.  Fortescue,  '.i  Atk.  Strong  r.  Conver.se,  Id.  557;  Chiswe'l 
130.  V.  Morris,  14  N.  J.  Eq.  101;  Eldrid^e 

2  Swaine  v.  Ferine,  5  .Johns.  Ch.  v.  Eldridge,  Id.  195;  Mantz  r.  Biioli- 
482;  London  v.  London,  1  Hump.  1;  anan,  1  Md.  Ch.  Dec.  202;  Scribmr 
Davis  V.  Davis,  3  Mo.  183;  Tate  v.  on  Dower,  Vol.  I.,  Chap.  XXIII. 


704 


ACCOUNT,    PARTITION,    ETC. 


[fart  III. 


ccjuitable  estates.^  The  conseciiience  is,  that  as  these  estates 
are  recognized  only  in  Courts  of  Chancery,  it  is  in  such  courts 
only  that  the  right  of  dower  in  these  estates  can  be  enforced,  and 
the  jurisdiction  of  Courts  of  Chancery  is,  in  such  cases,  exclusive. - 

Prior  to  the  statute  of  William  IV.,  above  cited,  equities  of 
redemption  fell  under  the  same  rule  as  ordinary  equitable  es- 
tates, so  far  as  the  right  of  dower  was  concerned.^  In  this 
country,  however,  the  mortgagor  is  generally,  perhaps  univer- 
sally, regarded  as  invested  with  the  legal  fee,  and  dower  may 
be  claimed  by  his  widow,  both  by  action  at  law  and  by  bill  in 
equity,  as  against  all  persons  except  the  mortgagee  and  those 
claiming  under  him.  As  against  them,  her  only  remedy  is  by 
bill  in  equity.^ 

Other  cases  also  may  arise  in  which  the  right  to  dower  is  con- 
trolled by  eciuitable  considerations.  Thus,  in  equity,  lands  used 
for  partnership  purposes  are  considered  as  personalty,  and  the 
widow's  claim  for  dower  must  be  postponed  until  the  affairs  of 
the  firm  are  settled.  The  consequence  is  that,  if  the  settlement 
is  improperly  delayed,  the  widow  may  file  a  bill  for  the  adjust- 
ment of  the  business  of  the  concern,  and  the  assignment  of  her 
dower. -^  So,  also,  the  widow  of  a  purchaser  of  real  estate,  on 
which  the  purchase-money  has  been  but  partially  paid,  may  file 
a  bill  to  compel  her  husband's  representatives  to  complete  the 
purchase,  and  even  to  sell  the  land  for  that  purpose,  and  allow 
her  a  proportionate  part  of  the  surplus  as  her  dower.^ 

So,  also,  where  estates  out  of  which  widows  are  entitled  to 
dower  are  sold  by  order  of  court,  or  are  so  sold  as  to  give  courts 
of  equity  jurisdiction  over  the  money,  these  courts  will  enter- 
tain jurisdiction  of  the  widow's  claim  for  dower  out  of  the  fund.' 


1  In  Massachusetts  a  wife  has  no 
dower  in  real  estate  in  which  her  hus- 
band's title  was  merely  equitable 
and  of  which  he  never  had  the  legal 
seisin  at  any  time  during  the  cov- 
erture. Seaman  r.  Harmon,  192 
Mass.  5. 

2McMahan  r.  Kimball,  3  Blackf. 
1;  2  Scribner  on  Dower,  151. 

3  Harris  v.  Powers,  129  Ga.  78. 

<  See  Gibson  r.  Crehore,  8  Pick. 
475;    1    Wash,    on    Real    Prop.    246; 


Farwell 


V. 


Cotting,    8    Allen,    211; 


Strong  V.  Converse,  Id.  557;  Chiswell 


i:  Morris,  14  N.  J.  Eq.  101;  Eld- 
ridge  V.  Eldridge,  Id.  195;  2  Scribner 
on  Dower,  151. 

5  Goodburn  v.  Stevens,  1  Md.  Ch. 
Dec.  420;  5  Gill,  1. 

6  Thompson  v.  Cochran,  7  Humph. 
72;  Daniel  ?•.  Leitch,  13  Gratt. 
195. 

7  Sabele  v.  Sabele,  1  Johns.  Ch.  45; 
1  Washburn  on  Real  Prop.  245.  But 
a  widow  cannot  file  a  bill  in  the  na- 
ture of  a  creditor's  bill  against  the 
heirs  for  a  sale  of  the  land.  Hull  v. 
Hull,  26W.  Va.  1. 


CH.  1\.]  ACCOUNT,    PARTITION,    ETC.  V05 

501.  General  conclusions  as  to  eciuitable  jurisdiction. 

From  the  above  sketch  of  the  grounds  upon  which  the  juris- 
diction of  courts  of  ecjuity  in  bills  for  dower  is  founded,  the 
general  conclusion  may  be  reached  that  these  courts  have  con- 
current jurisdiction  with  courts  of  law  in  all  cases,  and  that  no 
si)ecial  difhcidty  in  the  way  of  enforcing  the  right  at  common 
law  need  exist,  in  order  to  invoke  the  jurisdiction  of  the  chan- 
cellor.^ The  point  appears  to  have  arisen  in  Mundy  v.  Mundy,- 
where  a  demurrer  to  a  bill  for  dower  was  overruled,  although 
the  bill  contained  no  allegation  that  there  was  any  impediment 
to  the  complainant's  remedy  in  an  action  at  law.  But  while 
the  jurisdiction  of  courts  of  equity  to  assign  dower  is  undoubted, 
yet  it  may  be  laid  down  as  a  universal  rule,  that  in  cases  where 
the  right  of  the  widow  to  dower  is  controverted,  that  question 
must  be  tried  by  a  jury;  and  the  chancellor  will  either  direct  an 
issue  to  be  framed,  or  order  the  l^ill  to  be  I'ctained  until  the  right 
s}\all  have  been  tried  at  law.-''  The  practice  in  this  country  is 
said  to  be  to  retain  the  bill  for  a  reasonable  time  until  the  right 
at  law  is  established."^  Equity,  however,  will  aid  the  widow  by 
discovery  for  the  purpose  of  establishing  her  right  at  law.^ 

Ordinarily,  in  bills  of  assignment  of  dower,  the  defendant  is 
confined  to  strictly  legal  matters  of  defence,  as  the  claim  is 
treated  as  a  legal  claim;  and  in  several  decisions  in  the  United 
States  it  has  been  held  (contrary  to  the  English  doctrine),'^  that 
the  plea  of  a  bona  fide  purchase  for  value  is  no  defence,  even  in 
a  court  of  equity,  against  a  legal  claim  for  dower.'^  But  in 
several  instances,  equitable  matters  of  defence  have  been  allowed 

1  See  note  to  Agar  v.  Fairfax,  2  (x.  s.)  47,  it  was  decided  flatly  that  a 
Lead.  Cas.  Eq.  482  (4th  Eng.  ed.).         demandant  in  dower  is  not  entitled  to 

2  2  Ves.  Jr.  122.  inspection  of  the  deed  under  which 
»  Mundy  v.  Mundy,  2  Ves.  Jr.  122;       the  property,  out  of  which  she  claims 

D'Arcy  v.  Blake,  2  Sch.  &  Lef.  390;  to  be  endowed,  was  conveyed  away 

Daniels's  Ch.  Prac.  li;)9.  by  her  husband,  as  against  a  bona 

*  Badgley  r.  Bruce,  4  Paige  Ch.  98;  fide  purchaser  for  value  without  no- 

Swaine  i\  Ferine,  5  Johns.  Ch.  482;  tice  of  the  marriage. 

iUirtshorne  r.  Hartshorne,  2  N.  J.  Eq.  7  gnelgrove  r.   Snelgrove,   4   Dess. 

:;49;  Rockwell  v.  Morgan,  13  Id.  384;  288;  Larrowe  r.  Beam,  10  Ohio,  498; 

Wells  r.  Beall,  2  Gill  &  J.  468;  Sell-  Campbell  r.  Murphy,  2  Jon.  Eq.  357; 

man  v.  Bowen,  8  Id.  50;  2  Scribner  on  Ridgeway  r.  Newbold,  1  Harr.  (Del.) 

Dower,  149.  385;  Dick   v.  Doughton,   1   Del.  Ch. 

5  Curtis  y.  Curtis,  2  Bro.  C.  C.  620;  320;   Gano   v.   Gilruth,   4   G.   Greene 

D'Arcy  i'.  Blake,  2  Sch.  &  Lef.  387.  (Iowa),  453;  2  Scribner  on  Dower, 

"  In    Gomm    r.    Parrott,    3    C.    B.  157. 

45 


706  ACCOUNT,    PARTITION,    ETC.  [PART  III. 

to  be  set  up ;  ^  and  it  may  be  possible  that  the  influence  of  the 
modern  English  authorities,  upon  the  effect  of  pleading  a  pur- 
chase, will  induce  the  courts  to  adopt  a  different  position  from 
that  taken  in  Snelgrove  v.  Snelgrove  and  the  kindred  cases  citefl 

above.- 

Where  no  equitable  rights  are  involved  Courts  of  Chancery, 
in  assigning  dower,  will  apply  the  same  principles  as  would  be 
applied  by  a  court  of  law.^ 

502.  Manner  of  assigning  dower. 

The  right  to  dower  having  been  admitted  or  established,  its 
assignment  is  effected  by  means  of  a  reference  to  a  master  and 
a  commission,  and  the  share  is  set  out  by  metes  and  bounds,  and 
possession  ordered  to  be  delivered.  When  necessary,  also,  an 
account  will  be  taken. 

If,  for  any  cause,  the  land  out  of  which  the  dower  is  claimed 
has  been  turned  into  money,  the  widow  will  be  entitled  to  dowe^r 
out  of  the  fund.  The  practice  in  such  cases  is  not  uniform 
throughout  the  Union.  In  some  states  a  gross  sum  is  awarded, 
in  others  an  annual  interest  is  secured  to  the  complainant.^ 

In  addition  to  the  remedies  by  the  common-law  writs,  and 
by  bill  in  equity,  there  are,  in  many  states,  summary  proceed- 
ings in  probate  courts  and  courts  of  s-imilar  jurisdiction,  for  the 
assignment  of  dower  out  of  the  estates  of  decedents.  Proceed- 
ings of  this  nature  are  necessarily  more  limited  in  their  scope 
than  the  other  remedies.  They  are  the  subject  of  express  legis- 
lation in  most  of  the  states. 

1  See  Ralls  r.  Hughes,  1  Dana,  407;  of  purchase  for  value  will  be  over- 
Bullock  V.  Griffin,  1  Strob.  Eq.  60;  ruled.  Snelgrove  r.  Snelgrove,  and 
Steiger  v.  Hillen,  5  Gill  &  J.  121 ;  2  the  other  American  authorities  cited 
Scribner  on  Dower,  157,  158.  in  note  7,  page  705,  as  also  the  English 

2  See  Flagg  v.  Mann,  2  Sumn.  486.  deci-sions  of  Collins  v.  Archer,  1  Russ. 
It  will  be  remembered  that  in  the  &  My.  284,  and  Williams  v.  Lambe,  3 
chapter  upon  Notice  (ante,  §  264)  it  Bro.  C.  C.  264  {ante,  §  264),  may 
was  stated  that  the  holder  of  an  therefore  be  reconciled  with  the  gen- 
rquitable  title  may  avail  himself  of  eral  doctrine  of  pleading  a  purchase 
want  of  notice  as  a  defence,  and  that  upon  the  principle  thus  stated.  See 
he  may  do  this  even  when  the  plain-  PhiUips  r.  Phillips,  1  De  G.,  F.  &  J. 
tiff  is  the  holder  of  the  legal  title;  208;  Finch  c.  Shaw,  19  Beav.  500; 
but  that  to  this  rule  there  is  one  ex-  Wallwyn  r.  Lee,  9  Ves.  24;  Pilcher  v. 
ception,  viz.,  that  where  the  bill  is  Rawlins,  L.  R.  7  Ch,  269;  ante,  §  264. 
filed  simply  to  enforce  a  legal  right  ^  Drost  c.  Hall,  52  X.  J.  Eq.  68. 
through  an  equitable  remedy,  a  plea  ^  See  2  Scribner  on  Dower,  190. 


CH.  IV.] 


ACCOUNT,    PARTITION,    ETC. 


707 


503.  Jurisdiction  of  equity  in  cases  of  confusion  of  bound- 
aries. 

Somewhat  analogous  to  the  jurisdiction  in  cases  of  partition 
and  dower  is  that  which  Courts  of  ('hancerj^  occasionally  assume 
in  cases  of  disputed  boimdaries.  This  jurisdiction  is  of  ancient 
date,^  and  appears  to  have  met  with  more  favor  in  the  early 
period  of  the  history  of  equity'  jurisprudence  than  it  has  done  in 
modern  times.  The  origin  of  the  jurisdiction  is  a  subject  as  to 
which  there  has  existed  some  difference  of  opinion.  Lord  Keeper 
Henley,  in  the  leading  case  of  Wake  v,  Conyers,^  ascribing  it  to 
the  equity  of  preventing  a  multiplicity  of  suits,  while  Sir  William 
Grant '  was  of  opinion  that  it  grew  up  in  analogy  to  the  old 
common-law  writs,  De  rationalibus  divisis  and  De  peramhvlatione 
faciendd,  whenever  equitable  grounds  for  invoking  such  a  relief 
existed.  The  point  is  of  no  great  practical  importance,  as  the 
exercise  of  the  jurisdiction  in  modern  times  is  not  of  frequent 
occurrence. 

The  general  rule  may  now  be  stated  to  be  that  a  court  of 
equity  has  no  jurisdiction  to  fix  the  boundaries  of  legal  estates 
unless  some  ecjuity  is  superinduced  by  the  act  of  the  parties,^ 
or  unless  some  particular  circumstance  of  fraud  or  confusion 
exists.^  Thus,  where  the  owner  of  land  broke  down  the  dam, 
and  ploughed  up  the  rac(^-way  which  led  from  it,  so  as  to  render 
it  difficult  for  the  complainant,  who  was  entitled  to  use  both 
the  dam  and  the  race,  to  ascertain  and  define  their  course  and 
situation,  it  was  held  that  relief  was  properly  sought  for  in  chan- 
cery.^ And  where  the  settlement  of  a  boundary  was  necessary, 
under  the  circumstances  of  the  case,  to  prevent  a  multiplicity 


iSee  Perry  v.  Pratt,  31  Conn. 
433. 

3  2  Lead.  Cas.  Eq.  433  (4th  Eng. 
ed.). 

3  Speer  v.  Crawter,  2  Meriv.  410. 

*  Wilson  V.  Hart,  98  Mo.  618; 
Becker  v.  McGraw,  48  W.  Va.  539; 
Le  Comte  v.  Freshwater,  56  Id.  336. 
See  Hicks  v.  Hastings,  3  K.  &  J.  701, 
for  an  exceptional  case;  Deidrich  v. 
Simmons,  75  Ark.  400.  It  is  not  the 
busine.ss  of  equity  to  try  titles  to  real 
estate.  Where  neither  irreparable 
mischief,  a  multiplicity  of  suits,  nor 
oppressive    litigation    is    threatened, 


a  dispute  between  independent  pro- 
prietors of  adjoining  lands  as  to  the 
true  division  line  is  not  sufficient 
ground  for  the  interposition  of  a  court 
of  equity  either  to  ascertain  or  fix- 
such  boundary,  or  to  determine  the 
question  of  title  involved.  Watkins 
r.  Childs,  79  Vt.  234. 

5  Wake  V.  Conyers,  1  Eden,  331; 
Wolfe  V.  Scarborough,  2  Ohio  St. 
361;  2  Lead.  Cas.  Eq.  433  (4t.h  Eng. 
ed.);  Hays  v.  Bouchelle,  147  .Ma. 
212. 

6  Merriman  v.  Russell,  2  Jon.  Eq. 
470. 


708 


ACCOUNT,    PARTITION,    ETC. 


[part  III. 


of  suits,  the  jurisdiction  was  sustained.^  But  a  mere  confusion 
of  boundaries,  without  more,  will  not  be  enough  to  sustain  a  bill.- 
And  the  circumstance  that  the  plaintiff  has  only  an  equital)l(' 
title,  and  that  the  legal  title  is  outstanding  in  the  hands  of  trus- 
tees, will  not  be  enough  to  give  jurisdiction.^ 

To  sustain  the  bill  the  plaintiff"  nuist  show  that  some  portion 
of  the  land  is  in  possession  of  the  defendant;  "^  and  he  must  estab- 
lish by  admissions  of  the  defendant  or  by  evidence,  a  clear  title 
to  some  land  in  the  possession  of  the  defendant.^ 

504.  In  cases  of  rent. 

In  several  cases  in  England  relief  has  been  afforded  to  the 
owner  of  a  rent,  upon  principles  analogous  to  those  which  are 
applied  in  cases  of  confusion  of  boundaries.  The  owner  of  the 
rent  is  entitled  to  relief  hi  equity  (as  it  is  said),  "on  usage  of 
payment,"  where,  in  consequence  of  the  confusion  of  boundaries 
or  otherwise,  the  particular  lands  upon  which  the  rent  is  a 
charge  cannot  be  fixed  on  as  a  fund  for  the  legal  remedy  by 
distress.®  A  very  few  cases,  in  which  relief  was  given  in  etiuity 
in  matters  of  rent,  exist  in  the  United  States;  but  the  histances 
of  the  exercise  of  this  jurisdiction  are  very  rare.'' 


1  De  Veney  c.  Gallagher,  20  N.  J. 
Eq.  33;  Bute  (Marquis)  r.  Glamor- 
ganshire Canal  Co.,  1  Phillips,  681; 
Bouverie  i\  Prentice,  I  Bro.  C.  C.  200; 
Mayor  of  York  r.  Pilkington,  1  Atk. 
282. 

-See  Norris's  Appeal,  64  Pa.  27o; 
Tillnu's  r  .Marsh,  67  Id.  507;  Haskell 
r.  .VUcn,  23  Me.  448;  Doggett  r.  Hart, 
,)  Fla.  215,  232;  Wolcott  v.  Robhins, 
26  Conn.  236;  Dickerson  r.  StoU,  S 
-N  J  Eq.  294;  Topp  v.  Williams,  7 
Humph.  560;  .\ndries  r.  Detroit  Ry. 
Co.,  105  Mich.  557,  561;  Perry  v. 
Lucas,  11  Hawaii,  350.  Where,  how- 
ever, jurisdiction  has  attached  be- 
cause of  some  other  ground  equity 
will  .settle  boundaries,  Campbell  r. 
Kent,  111  Mich.  575;  Dolan  ?'  Smith, 
147  Mich.  276. 

;*  Stuart's  Heirs  i-.  Coater,  4  Rand. 
74;  Doggett  r.  Hart,  5  Fla.  215. 

*  .\tt.-Gen.    V.  Stephens,  6  De  G., 


M.  &  G.  Ill,  149,  overruling  the  Vice- 
Chancellor  in  1  K.  &  J.  724. 

5  Godfrey  v.  Littel,  1  Russ.  &  My. 
59;  2  Russ.  &  My.  630.  It  is  not  nec- 
essary that  the  title  should  be  ad- 
mitted by  the  defendant;  it  may  be 
established  by  evidence.  Godfrey  i'. 
Littel  {supra),  overruling  Bishop  of 
Ely  V.  Kenrick,  Bunb.  322. 

6  See  Duke  of  Leeds  v.  Powell,  1 
Ves.  Sr.  171,  172;  North  v.  The  p:arl 
of  Strafford,  3  P.  Wms.  148;  Bou- 
verie V.  Prentice,  1  Bro  C.  C.  200; 
Duke  of  Leeds  v.  The  Corporation  of 
New  Radnor,  2  Id.  518;  Mayor  of 
Basingstoke  v.  Lord  Bolton,  1  Drew. 
289;  note  to  Wake  r.  Conyers,  2 
Lead.  Cas.  Eq.  445  (4th  Eng.  ed.). 
See,  also,  Benson  v.  Baldwin,  1  Atk. 
598. 

7  Daw.son  v.  Williams,  1  Freem.  Ch. 
99;  Lawrence  v.  Hammett,  3  J.  J. 
Marsh.  287.     See  Livingston  v.  Liv- 


CH.  IV.] 


ACCOUNT,   PARTITION,    ETC. 


709 


ingston,  4  Johns.  Ch.  287,  290.  In 
Story's  Equity  Jurisprudence,  Chap. 
XVI.,  a  number  of  instances  in  which 
the  EngUsh  High  Court  of  Chancery 
has  exercised  jurisdiction  in  matters 
of  rent  are  grouped  together.  These 
cases,  however,  seem  referable  to 
other  heads  of  equity  jurisdiction, 
such  as  Discovery,  Specific  Perform- 


ance, etc.,  and  do  not  constitute  a 
distinctive  equitable  remedy.  It  may 
be  doubted  whether,  in  modern  times, 
the  courts  will  not  refuse  to  fol- 
low many  of  these  old  authorities. 
See  Walters  v.  The  Northern  Coal 
Mining  Company,  5  De  G.,  M.  &  C 
629,  646,  647. 


10 


PARTXKR.SIllP    BILLS. 


[part  III. 


CHAPTER  V. 


PARTNERSHIP    BILLS. 


505. 
506. 
507. 
508. 

509. 
510. 
511. 


512 
513 


Reasons  for  resorting  to  equity 
in  partnership  eases. 

Nature  of  the  contract  of  part- 
nership. 

Many  equitable  remedies  ap- 
pHed  to  partnership  cases. 

Pecuhar  remedy  by  Partnership 
Bills;  bills  for  account  need 
not  pray  a  dissolution. 

Causes  of  dissolution;  grounds 
for  bills  for  dissolution. 

Preservation  of  partnership 
property. 

Doctrine  of  conversion  as  ap- 
plied to  partnership  real  es- 
tate; rule  in  England. 

Rule  in  the  United  States. 

Qualifications  of  the  rule. 


514. 
515. 

51G. 


517. 

518. 
519. 
520. 

521 
522 

523. 

524. 


Sale  and  account. 

Winding-up  partnerships;  joint 
and  separate  debts. 

Separate  assets  of  deceased 
partner  applied  in  the  first 
instance  to  payment  of  sep- 
arate debts. 

Extension  of  this  doctrine; 
English  rule. 

Rule  in  Tucker  v.  Oxley. 

Bankruptcy  Act  of  1898. 

Method  in  which  joint  creditors 
may  collect  their  debts. 

Remedies  of  separate  creditors. 

Joint  and   separate  executions. 

Suits  between  firms  having  a 
common  member. 

Mines. 


505.  Reason  for  resorting  to  equity  in  partnership  cases. 

When  the  relations  which  exist  between  partners  come  to  be 
dealt  with  by  jucUcial  tribunals,  it  is  sometimes  found  necessary, 
in  order  to  do  justice  between  the  parties,  that  an  account  should 
be  taken,  that  a  dissolution  should  be  decreed,  that  assets  should 
be  called  in  and  protected,  that  a  sale  of  partnership  property 
should  be  ordered,  and  that  an  eciuitable  distribution  of  the 
proceeds  should  be  made. 

It  is  evid(!nt  that  none  of  these  desired  ends  can  be  fully  at- 
tained by  conmion-law  process,  and  some  of  them  cannot  be 
attained  at  all.  An  action  of  account  may,  it  is  true,  be  broui^ht; 
but  the  disadvantages  of  that  action,  and  the  superiority  of  the 
efiuitable  procedure,  have  been  already  pointed  out.  Breaches 
of  distinct  stipulations  in  the  agreement  of  partnership  may 
also  be  the  subjects  of  the  t'ominon-law  actions  of  covenant  or 
assumpsit,  according  as  the  partnership  agreement  is  under  seal 


CH.  v.] 


PARTNERSHIP   BILLS. 


711 


or  in  parol;  and  actions  have,  moreover,  been  brought  to  re- 
cover damages  for  a  wrongful  dissolution,  or  for  refusing  to  en- 
ter into  a  stipulated  partnership.^  But  no  common-law  writ  ex- 
ists by  which  a  partnership  can  be  dissolved,  its  assets  protected 
pending  litigation  between  the  partners,  or  a  sale  of  the  partner 
jiroperty  ordered;  nor  do  the  common-law  rules  as  to  (le):)tor 
and  creditor  furnish  a  system  for  the  proper  distribution  of  the 
partnership  effects.  Hence  there  has  arisen  a  necessity  for  an 
equitable  remedy  based  upon  the  inability  of  the  common-law 
courts  to  answer  the  requirements  of  justice.  Bills  for  ap])lying 
this  equitable  remedy  are  termed  Partnership  Bills;  and  are, 
generally,  designed  to  effect  a  dissolution  of  the  partnership, 
the  protection  of  its  property,  an  account,  and  a  distribution  of 
its  assets. 


506.  Nature  of  the  contract  of  partnership. 

This  inability  of  the  common-law  forms  of  action  to  deal  with 
many  of  the  consequences  of  the  contract  of  partnership  grows 
out  of  the  nature  of  the  contract  itself — ^one  of  the  results  of 
which  contract  is  to  constitute  each  partner  an  agent  of  the 
firm.-  Hence  arises  the  capacity  of  each  partner  to  contract  part- 
nership debts,  and  to  acquire  and  deal  with  partnership  assets, 
and  to  enjoy  his  due  proportion  of  the  profits  of  the  concern. 

A  dissolution  of  the  partnership  is  a  rescission  of  the  contract, 
and  this  a  court  of  law  cannot  compel;  and  the  faithful  })erform- 
ance  of  this  contract  necessitates  a  rendering  of  accounts,  and  a 
guardianship  and  distribution  of  property,  which  a  court  of  law 
cannot  adequately  enforce.^ 

607.  Many  equitable  remedies  applied  to  partnership  cases. 

It  must  be  remembered  that  the  relations  of  partners  with 
each  other,  and  with  third  parties,  may  give  rise  to  many  nvasons 
for  the  interference  of  a  chancellor,  which  do  not  call  for  the  cxer- 


1  Addams  v.  Tutton,  39  Pa.  447; 
McNeill  V.  Reid,  9  Bing.  GS;  Vance 
V.  Blair,  18  Ohio,  532;  Parsons  on 
Partnership,  237.  See,  also,  Hale  v. 
Wilson,  112  Mass.  444,  an  action  at 
law  to  recover  money  which  the  plain- 
tiff had  been  fraudulently  induced  to 
contribute  to  a  partnership  capital. 

2  Meehan  v.  Valentine,  145  U.  S. 
611-020;  Cox  v.  Hickman,  8  H.   L. 


Cas.  268;  Pooley  v.  Driver,  5  Chan. 
Div.  4.58-477. 

3  Where  one  partner  sells  his  in- 
terest in  the  partnership  property  to 
the  other  partner  he  cannot  main- 
tain a  bill  in  equity  for  a  settlement 
and  accounting;  the  compensation 
agreed  to  be  paid  must  be  enforced  at 
law.     Pace  v.  Smith,  137  Ala.  511. 


712 


PARTNERSHIP    BILLS. 


[part  III. 


cise  of  the  particular  equitable  remedy  now  under  consider- 
ation. Thus  a  hill  may,  under  certain  circumstances,  be  filed 
to  compel  the  execution  of  partnership  articles,^  or  compliance 
with  particular  stipulations  in  the  same; '  but  such  a  bill  is  one 
in  which  the  peculiar  remedy  of  specific  performance  is  invoked ; 
and  would,  therefore,  fall  under  that  general  head  of  equital)le 
jurisdiction.  So,  also,  an  inj unction  may  be  obtained  to  prevent 
a  violation  of  partnership  articles,  or  misappropriation  of  })art- 
nership  funds,'''  or  (in  some  cases)  a  wrongful  dissolution  of  the 
firm;  "*  while  the  equitable  remedy  of  discovery  may  be,  and  fre- 
quently is,  called  into  play  for  the  purpose  of  enabling  one  partner 
to  assert  his  rights  against  his  copartner.^ 

508.  Peculiar  remedy  by  partuership  bills  ;  bills  for  ac- 
count need  not  pray  a  dissolution. 

But  the  basis  of  the  equitable  remedy  now  to  be  noticed  is 
the  necessity  for  the  due  winding  up  of  a  partnership;  and  this 


1  The  better  opinion  now  seems  to 
be  that  if  two  persons  have  agreed  to 
enter  into  partnership,  and  one  of 
them  refuses  to  abide  by  the  agree- 
ment, the  remedy  for  the  other  is, 
generally,  an  action  for  damages,  and 
not  a  bill  for  specific  performance. 
Hyer  v.  Richmond  Trac.  Co.,  168 
U.  S.  484;  Clark  v.  Tniitt,  183  111. 
239;  Scott  v.  Rayment,  L.  R.  7  Eq. 
112;  Hercy  v.  Birch,  *J  Ves.  357;  Lind- 
ley  on  Partnership,  *475  (5th  ed.); 
Parsons  on  Partnership,  235;  Craw- 
shay  V.  Maule,  1  Swanst.  511,  and 
notes.  To  compel  an  unwilling  per- 
son (it  has  been  said)  to  become  a 
partner  with  another,  would  not  be 
conducive  to  the  welfare  of  the  lat- 
ter, any  more  than  to  compel  a  man 
to  marry  a  woman  he  did  not  like 
would  be  for  the  benefit  of  the  lady. 
Lindley  on  Partnership,  ul  sup. 
However,  if  the  parties  have  agreed 
to  execute  some  formal  instrument, 
which  would  have  the  eftect  of  alter- 
ing their  jiosition  at  law,  and  of  con- 
ferring rights  which  do  not  exist  so 
long  as  the  agreement  is  not  carried 
out,  in  such  a  case,  and  for  the  j)ur- 


pose  of  putting  the  parties  into  the 
legal  position  agreed  upon,  the  ex- 
ecution of  that  formal  instrument 
may  be  decreed,  although  the  part- 
nership thereby  formed  might  be 
immediately  dissolved.  See  Eng- 
land V.  Curling,  8  Beav.  129;  Lindley 
on  Partnership,  *476. 

2  See  Whittaker  v.  Howe,  3  Beav. 
383;  Turner  v.  Major,  3  Giff.  442; 
Lingen  i".  Simpson,  1  Sim.  &  Stu. 
(300;  Morris  v.  Kearsley,  2  Y.  &  C. 
E.xch.  139;  Essex  v.  Essex,  20  Beav. 
442;  Homfray  v.  Fothergill,  L.  R.  1 
Eq.  567;  Aubin  v.  Holt,  2  K.  &  J. 
66;  Lindley  on  Partnership,  *47S. 
See,  also.  Downs  v.  Collins,  6  Hare, 
418;  Cooper  v.  Hood,  7  Week.  Up\>. 
83. 

3  See  ante,  §  426;  Lindley  on  Par.- 
nership,  *543. 

4  See  Blissett  v.  Daniel,  10  Har, . 
493;  Lindley  on  Partnership,  *571, 
*575. 

»  Lindley  on  Partnership,  *501- 
*502.  Or  to  determine  the  existence 
of  a  partnership.  McReynolds  l\  M<y- 
Reynolds,  74  la.  89. 


CH.  v.]  PARTNERSHIP    BILLS.  7l3 

equity  alone,  independently  of  any  other  considerations,  will 
entitle  a  suitor  to  demand  relief  at  the  hand  of  a  chancellor. • 

A  question  which  frequently  arises  upon  the  threshold  of  this 
subject  is,  whether  a  bill  for  an  account  which  does  not  seek  a 
dissolution  of  the  partnership  will  be  entertained.  It  is  asserted 
by  some  text-writers  that  such  a  bill  will  not  lie ;  -  that  is  to  say, 
that  equity  will  not  interfere  to  order  an  account  which  con- 
templates a  continuance  of  the  partnership.  But  the  proposition 
cannot,  perhaps,  be  so  broadly  stated. 

In  England,  while  the  question  may  not  be  entirely  settled, 
the  current  of  modern  authority  is  certainly  in  favor  of  relaxing 
the  rule;  and  it  may  be  laid  down,  as  a  general  proposition,  that 
courts  of  equity  will  not,  if  they  can  avoid  it,  allow  a  partner 
to  derive  advantage  from  his  own  misconduct,  by  compelling 
his  copartner  to  submit  either  to  a  continued  wrong  or  to  a 
dissolution.^  The  rule  will  certainly  not  be  applied  to  the  case 
of  joint-stock  companies,  or  other  associations  of  which  the  mem- 
bers are  very  numerous.'* 

In  Pennsylvania  and  Georgia  it  has  been  decided  that  a  bill 
for  an  account  will  be  entertained,  although  it  does  not  pray  a 
dissolution.^ 

509.  Causes  of  dissolution  ;  grounds  for  bills  for  disso- 
lution. 

Bills  for  the  administration  of  partnership  assets  may  either 
be  filed  after  dissolution,  or  they  may  be  filed  for  the  purpose 
of  obtaining  a  decree  for  a  dissolution  and  subsequent  admin- 
istration. 

It  is  well  known  that  a  partnership  may  be  dissolved  in  man}' 

1  Lindley  on  Partnership,  *586  (5th  ^  Hudson  v.  Barrett,  1  Pars.  Eq. 
ed.);  Tarabino  v.  Nicoli,  5  Colo.  App.  414;  Miller  r.  Freeman,  111  Ga.  654; 
545.  Equity  has  jurisdiction  in  cases  Hogan  v.  Walsh,  122  Ga.  283.  See 
of  accounting  and  settlement  be-  Marble  Co.  v.  Ripley,  10  Wall, 
tween  partners.  This  jurisdiction  is  339,  and  Parsons  on  Partnership, 
not  lost  because  discovery  from  the  300,  note  u.  But  see  Tutwiler  v. 
defendant  is  waived  by  the  plain-  Dugger,  127  Ala.  11)1.  A  court  of 
tiffs.  Huger  v.  Cunningham,  126  Ga.  equity  will  not  take  cognizance  of  an 
684.  action  for  an  accounting  as  a  mere 

2  Adams's  Doct.  Eq.  241.  incident  to  the  settlement  of  a  sol- 

3  Fairthorne  v.  Weston,  3  Hare,  itary  matter  in  dispute  between 
392;  Lindley  on  Partnership,  *495  partners  when  it  is  not  vital  to 
(5th  ed.).  See  Walworth  v.  Holt,  4  either  party  or  to  the  business  and 
Myl.  &  Cr.  619.  dissolution   is  not  sought.      Lord   v. 

*  Adams's  Doct.  Eq.  241.  Hull,  178  N.  Y.  9. 


714 


PARTNERSHIP    BILLS. 


[part  III. 


ways.  Thus  a  dissolution  may  result  either  from  the  effluxion 
of  time,  or  from  mutual  agreement,  or  from  the  death  or  bank- 
ruptcy of  a  partner/  or  from  a  seizure  and  sale  of  a  partner's 
share  under  an  execution,  or  from  a  voluntary  assignment  by 
one  partner  of  all  his  interest  in  the  firm,  or  from  the  act  of  God, 
or  the  act  of  government  (as  from  a  war  between  the  countries 
of  the  partners),  or  from  some  of  the  members  becoming  a  Ijody 
]iolitic.-  So,  if  no  specific  term  for  the  duration  of  the  })artner- 
shi])  has  been  fixed,  it  may  be  dissolved  at  the  option  of  any  of 
ihc  partners;  and  even  where  a  partnership  has  been  formed  for  a 
definite  period,  it  has  been  held,  in  some  cases,  that  it  was  within 
the  power  of  any  partner  to  dissolve  it.^  Where  a  partnership 
has  been  thus  dissolved,  the  objects  of  the  bill  are  that  an  account 
should  be  taken,  and  that  the  firm  assets  should  be  properly  pro- 
tected and  duly  distributcnl.  But  in  many  partnership  suits  the 
main  object  of  the  bill  is  a  decree  for  a  dissolution;  ■*  and  such  a 
decree  can,  of  course,  only  be  made  upon  proper  cause.  The 
gener.A  ground  for  a  dissolution  is  that  the  partnership  cannot  be 
carried  on  for  the  benefit  of  the  parties,  according  to  the  original 
intention ;  and  this  may  result  either  from  something  independent 
of  the  conduct  of  the  partners,  e.  g.,  that  the  principles  upon 
which  the  partnershij)  is  based  are  found  to  be  erroneous  and  im- 
practicable ;  °  or  from  the  conduct  of  a  partner,  as  if  he  is  acting 
frau(kilently  in  assuming  exclusive  control  of  the  business,  or  is 


1  Helmore  r.  Smith,  35  Ch.  D.  43(5. 

^  In  Lindley  on  Partnership,  *570, 
the  grounds  for  a  dissolution  are 
stated  to  bo  the  following:  1.  The 
will  of  any  partner;  2.  The  impossi- 
bility of  going  on  in  consequence  of 
(a)  the  hopeless  state  of  the  part- 
nership business,  or  (6)  insanity,  or 
(c)  misconduct;  '■'>.  The  transfer  of  a 
partner's  interest;  4.  The  occurrence 
of  some  event  which  renders  the  part- 
nersliip  illegal;  o.  Death;  and  6. 
Bankruptcy.  See,  also,  Parsons  on 
Partnership,  Chap.  XII. 

3  Skinner  r.  Dayton,  19  Johns.  538; 
Mason  >•.  Connell,  1  Whart.  3S1;  and 
see  Bishop  r.  Breckles,  I  Hotf.  Ch. 
543.  But  the  law  has  been  assumed 
to  be  the  ollic!'  way  in  several  au- 
thorities.    See    Peacock   /•.    Peacock, 


16  Ves.  57;  Crawshay  ^\  Maule,  1 
Swanst.  508;  Wheeler  v.  Van  Wart,  9 
Sim.  193;  Pearpoint  i'.  Graham,  4 
Wash.  C.  C.  282;  Parsons  on  Partner- 
ship, 404. 

*  In  Master  v.  Kirton,  3  Ves.  74, 
the  bill  was  demurred  to  on  the 
ground  that  the  partnership  was  a 
partnership  at  will,  and  could,  there- 
fore, be  dissolved  without  a  decree 
of  the  court.  The  demurrer  wasover- 
ruled. 

5  See  Baring  v.  Dix,  1  Cox,  213. 
And  a  dissolution  may  be  decreed 
where  success  is  hopeless  (Willis  v. 
Chapman,  68  Vt.  459);  or  where  the 
original  capital  has  been  all  spent  and 
some  of  the  partners  are  unable  or  un- 
willing to  advance  more  money,  and 
at    the  same  time  the  concern  can- 


CH.  v.] 


PARTNERSHIP    BILLS. 


715 


guilty  of  breaches  of  faith,  or  other  gross  misconduct;  ^  or  from 
the  incapacity  of  a  partner,  as,  for  example,  his  lunacy.^ 

But  trifling  faults,  or  (juarrels  between  the  parties,  will  not 
justify  a  decree  for  dissolution ;  ^  nor  will  such  a  decree  be  neces- 
saril}''  warranted  by  a  breach  of  partnership  articles.^ 

510.  Preservation  of  partnership  property. 

If  the  partnership  has  become  ipso  facto  dissolved  for  any 
of  the  reasons  mentioned  above,  or  if  a  decree  for  its  dissolution 
has  been  made  for  cause,  the  next  subject  which  occupies  the 
attention  of  the  court  is  the  necessity  for  preserving  the  property 
of  the  firm,  and  for  the  inmiediate  management  of  the  concern 
while  the  process  of  winding-up  is  going  on.  If  there  is  no  objec- 
tion, these  duties  may  be  left  to  the  parties.  The  duty  of  licjuida- 
tion  is  sometimes  assigned  to  one  partner  by  express  agreement, 
and  it  sometimes  devolves  upon  him  by  operation  of  law — as  in 
the  case  of  a  surviving  or  solvent  partner.  But  where  all  the 
partners  are  dead,  or  where  the  management  of  affairs  cannot  be 
safely  intrusted  to  any  of  the  parties,  the  court  will  interfere, 
and  will  appoint  a  receiver  to  take  charge  of  the  property  and 
wind  up  the  business. 

It  would  be  impossible  to  enter  into  a  detailed  statement  (^f 

not  go  on  except  at  a  loss  unless  they  one  of  the  partners  will  not  ipsn 
do.  Jennings  v.  Baddeley,  3  K.  &  facto  be  a  dissolution,  although,  vvlien 
J.  78. 

1  See  Kennedy  v.  Kennedy,  3  Dana, 
239;  Williamson  v.  Wilson,  1  Bland, 
418;  Berry  v.  Cross,  3  Sandf.  Ch.  1; 
Holden  v.  McMakin,  1  Pars.  Eq.  Cas. 
270;  Miller  v.  Jones,  39  111.  54;  May- 
nard  v.  Railey,  2  Nev.  313,  318; 
Shulte  V.  Hoffman,  18  Tex.  678;  Sei- 
bert  V.  Seibert,  1  Brews.  531;  Page 
V.  Vankirk,  Id.  287;  Childers  v.  Neely, 
47  W.  Va.  70.  And  a  partner  may, 
in  such  cases,  apply  for  a  decree  of 
dissolution,  notwithstanding  a  stip- 
ulation in  the  partnership  articles 
that  no  such  application  will  be 
made.  Adams  v.  Shewalter,  139 
Ind. 178. 

2  Anonymous,  2  K.  &  J.  441 ;  Jones 
V.  Lloyd,  L.  R.  18  Eq.  265;  Bissell  r. 
Peirce,  184  111.  60.  The  better  opin- 
ion now  seems  to  be  that  lunacy  of 


of  a  confirmed  character,  it  will  war- 
rant a  decree  for  dissolution.  Jones 
V.  Noy,  2  Myl.  &  K.  125;  Rowlands 
V.  Evans,  30  Beav.  302;  Lindley  on 
Partnership,  *577  (5th  ed.).  In  Davis 
I'.  Lane,  10  N.  H.  161,  and  Isler 
V.  Baker,  6  Humph.  85,  however,  the 
rule  that  lunacy  did  not  operate,  of 
itself,  as  a  dissolution  was  disap- 
proved. See  Parsons  on  Partner- 
ship, 465. 

3  Goodman  v.  Whitcomb,  1  J.  &  W. 
569;  Henn  v.  Walsh,  2  Edw.  Ch.  129; 
Parsons  on  Partnership,  458;  Lind- 
ley  on  Partnership,  *.')80.  See,  also, 
Bishop  V.  Breckles,  1  Hoff.  Ch.  534; 
Watney  v.  Wells,  30  Beav.  .56;  Ste- 
vens r.  Yeatman,  19  Md.  480. 

••  .\nderson  v.  Anderson,  25  Beav. 
190. 


iG 


PARTNERSHIP    BILLS. 


[part  III. 


all  the  causes  which  will  justify  he  appointment  of  a  receiver.^ 
It  will  be  sufficient  to  observe  here,  that  where  a  dissolution 
has  been  decreed  in  consequence  of  the  improper  conduct  of 
parties,  or  for  some  similar  cause,  a  receiver  will  be  appointed 
as  a  matter  of  course,  the  reason  being  that  the  same  causes 
which  justify  a  decree  for  dissolution  in  such  cases  will  also 
justify  an  appointment  of  a  receiver;  but  that  where  a  disso- 
lution has  already  taken  place,  and  the  bill  m  filed  simply  for  a 
proper  administration  of  partnership  assets,  a  receiver  will  not 
be  appointed  as  a  matter  of  course,  but  only  when  there  is  some 
mismanagement  or  improper  conduct  on  the  part  of  the  person 
who  has  the  custody  of  the  property.- 

Ihe  remedy  of  injunction  is  also  sometimes  called  into  play 
upon  proper  cause  shown. ^ 


511.  Doctrine  of  eonversiou  .is  applied  to  partnership  real 
estate  ;  rule  in  England. 

In  pursuing  the  duty  of  getting  in  and  administering  the 
partnership  assets,  a  Court  of  Chancery  has  the  power  to  order 
a  sale  of  real  estate.'* 

It  is  a  general  rule  that  when  real  estate  is  purchased  with 
partnership  funds  for  partnership  purposes,  and  without  any 
intention  of  withdrawing  the  funds  from  the  firm  for  the  use 
of  all  or  any  of  the  members  thereof  as  individuals,  such  real 
estate;  is  to  be  considered  as  partnership  property,  and  as  liable 
to  all  the  equitable  rights  of  the  partners  between  themselv(»s.'' 


1  For  authorities  illustrative  of  the 
cases  in  which  receivers  will  be  ap- 
pointed, see  Hall  v.  Hall,  3  MacN.  & 
(i.  !»();  Const  v.  Harris,  T.  &  R.  517; 
Taylor  i'.  Neate,  39  Ch.  D.  538; 
Govvan  v.  Jeffries,  2  Ashm.  296;  Wil- 
liamson i\  Wilson,  1  Bland,  418; 
Randall  v.  MorrcU,  17  N.  J.  Eq.  346; 
Holden  v.  McMakin,  1  Pars.  Eq.  Cas. 
270;  Miller  v.  Jones,  39  111.  54;  Saylor 
V.  Mockbie,  17  la.  209;  Boyce  v. 
Burchard,  21  Cia.  74;  Maynard  ?•. 
Railey,  2  Nev.  313;  Shulte  v.  Hoff- 
man, 18  Tex.  678;  Seibert  v.  Seibert, 
1  Brews.  531;  Page  v.  Vankirk,  Id. 
2S7;  Kerr  on  Receivers,  90  ct  seq. 
(2d  Am.  ed.). 

-  Kerr  on  Receivers,  ut  f<np.    Even 


where  a  dissolution  is  contemplated 
by  the  decree,  it  is  not  in  all  cases 
proper  to  appoint  a  receiver.  Kerr 
on  Receivers,  90  (2d  Am.  ed.) 

3  Ante,  §  426. 

*  The  court  has  power  to  order  a 
sale  of  partnership  assets,  before  a 
decree  for  dissolution,  in  order  to 
prevent  a  loss.  Wulff  v.  Superior 
Court,  110  Cal.  215. 

5  Buchan  v.  Sumner,  2  Barb.  Ch. 
198;  Hoxie  v.  Carr,  1  Sumn.  LSI; 
Abbott's  Appeal,  50  Pa.  234;  Meily  r. 
Wood,  71  Id.  488;  Foster  v.  Barnes, 
81  Id.  377;  Uhler  v.  Semple,  20  N.  J. 
Eq.  288;  Sigourney  v.  Munn,  7  C'onn. 
11;  Wallis  v.  Freeman,  35  Vt.  44; 
Clagett  V.  Kilbournc,  1  Black  (U.  S.), 


CH.  v.]  PARTNERSHIP   BILLS.  717 

The  result  of  this  rule  is  that  as  each  partner  has  an  equity  to 
insist  upon  a  sale  of  such  real  estate,  it  is  to  be  treated  as  per- 
sonalty for  the  purposes  of  the  partnership;  but  whether  it  is 
to  l)e  so  treated  for  all  purposes  is  a  question  upon  which  there 
has  been  some  conflict  of  authority. 

It  has  been  contended,  on  the  one  hand,  that  the  conversion 
of  realty  into  personalty  is  a  conversion  ''out  and  out,"  and  that 
after  it  has  been  appropriated  to  the  partnership  liabilities,  the 
surplus  (if  anjO  is  payable  to  the  personal  representatives  and 
not  to  the  heir  of  a  deceased  partner.  This  is  now  the  rule  in 
England.  After  some  fluctuations  in  the  law,  the  conclusions 
which  have  been  finally  reached  are  that  wherever  a  partner- 
ship purchases  real  estate  for  the  partnership  purposes  and  with 
partnership  funds,  it  is,  as  between  the  real  and  personal  repre- 
sentatives of  the  partners,  personal  estate,^  that  it  makes  no 
difference  as  respects  the  question  of  conversion,  whether  the 
land  was  purchased  with  partnership  moneys,  or  whether  it 
was  acquired  in  any  other  way,  provided  the  land  is,  in  the 
])roper  sense  of  the  term,  an  asset  of  the  partnership;  ^  but  that 
the  general  rule  may  be  excluded  by  an  agreement,  express  or 
inii^lied,  to  the  effect  that  the  land  shall  not  be  sold,  for  the 
reason  of  the  rule  (which  is  that  each  partner  has  an  equity  for 
a  sale  of  the  land)  excludes  its  application  in  such  a  case.^ 

512.  Rule  in  the  United  States. 

In  the  United  States,  however,  the  general  tendency  of  the 
authorities  is  to  limit  the  conversion  to  the  purposes  of  the 
]jartnership,  and  ultra  those  purposes  to  treat  the  property  as  if 
in  its  original  state.  The  conseciuence  of  this  doctrine  is  that 
the  surplus,  after  the  partnership  liabilities  and  equities  have 
been  answered,  will  go  to  the  real,  and  not  to  the  personal,  repre- 
sentatives of  a  deceased  partner.  This  is  perhaps  the  general 
doctrine  throughout  the   Union;'*  although  in  Kentucky   the 

;',t();  :}  Kent's  Com.  .39;  Parsons  on  ^  Dyer  v.  Clark,  5  Met.  562;  Wil- 

Partnership,   363,    369.  cox  v.  Wilcox,  13  Allen,  254;  Shearer 

1  Darby  v.  Darby,  3  Drew.  506.  v.  Shearer,  98  Mass.  107;  Buchan  r. 

2  See  the  remarks  of  Lord  Eldon  in  Sumner,  2  Barb.  Ch.  165,  201;  Til- 
Jackson  V.  Jackson,  9  Ves.  n^'.].  See,  linghast  r.  Champlin,  4  R.  I.  173; 
also,  Waterer  v.  Watercr,  1  .  R.  14  Foster's  Appeal,  74  Pa.  397.  See, 
Eq.  402.  also,  Goodburn  v.  Stevens,  1  Md.  Ch. 

3Steward  ?'.  Blakeway,  L.  R.4Ch.  420;  5  Gill,  1;  Hale  v.  Plummer,  6 
603,  and  L.  R.  6  Eq.  479;  Lindlcy  Ind.  121;  Piper  c.  Smith,  1  Head, 
on  Partnership,  *346  (5th  ed.).  93;   Dilworth   v.   Mayfield,    36   Miss. 


718 


PARTNERSHIP    BILLS. 


[PAFi'l   111. 


English  rulo  is  followed/  and  in  Mrginia  the  question  does  not 
seem  to  be  settled,  the  English  rule  having  been  at  one  time 
adopted,-  and  the  point  in  subsequent  decisions  having  been 
treated  as  doubtful.^ 


513.  (Qualifications  of  the  rule. 

The  general  rule  as  to  conversion,  stated  above,"*  is,  it  will 
he  observed,  subject  to  the  qualification  that  where  the  purchase 
is  made  with  an  intention  of  withdrawing  the  funds  from  the 
firm  for  the  use  of  all  or  any  of  the  members  thereof  as  indi- 
viduals, the  real  estate  so  purchased  will  not  be  considered  as 
Ijersonal  property — in  other  words,  the  doctrine  of  conversion 
will  not  apply;  and  further,  that  if  land  Ijelongs  to  all  the  partners 
as  tenants  in  common,  but  not  as  partners,  and  the  land  is  used 
by  thcMu  for  partnership  purposes,  but  is,  nevertheless,  intended 
to  remain  vested  in  them  as  tenants  in  common,  and  not  to  form 
part  of  the  assets  of  the  firm,  the  share  of  each  partner  will  be 
real,  and  not  personal  v  state. 

A  result  of  the  first  portion  t)f  the  above  qualification  has 
been  held  in  Pennsylvania  to  be,  that  to  affect  strangers — pur- 
chasers, mortgagees,  and  creditors — there  must  be  some  written 
evidence  of  the  intention  of  the  partners  to  make  the  real  estate 
partnership  assets,  and  that  where  there  is  simply  a  conveyance 
to  them  as  tenants  in  common,  it  is  not  competent  to  show  by 
parol  evidence  that  the  property  was  in  fact  designed  to  form 
part  of  the  partnership  assets,^  or  even  that  this  fact  was  known 
to  a  purchaser.^ 

Th(>  opinion  in  other  states  of  the  Union  appears  to  be  ad- 
verse to  following  this  doctrine,  at  least  to  the  same  extent.^ 


( 


40;  Scruggs  v.  Blair,  44  Id.  406; 
Lang  r.  Waring,  25  Ala.  625;  Espy 
('.  Conier,  76  Id.  501;  Comstock  v. 
McDonald,  126  Mich.  142.  See,  how- 
ever. Ware  r.  Owens,  42  Id.  212;  3 
Kent's  Com.  40  (12th  ed.);  Parsons 
on  Partnership,  .371;  American  note 
to  Lake  v.  Gibson,  1  Lead.  Cas.  Eq. 
295  (4th  Am.  ed.). 

1  Bank  of  Louisville  v.  Hall,  S 
Bush,  672;  Cornwall  v.  Cornwall,  6 
Id.  6'J. 

2  Pierce   u.  Trigg,    10   Leigh,   406. 


3  Jones  V.  Neale,  2  Pat.  &  H.  339; 
Davis  V.  Christian,  15  Gratt.  11. 

4  Ante,  p.  717. 

•■>  Ridgway's  .\ppeal,  15  Pa.  177. 
See,  also,  McDermot  v.  Laurence,  7 
S.  &  R.  438;  Lefevre's  Appeal,  69 
Pa.  125;  Ebbert's  Appeal,  70  Id.  79; 
Appeal  of  Second  National  Bank, 
S3  Id.  203,  and  Geddes's  Appeal,  S4 
Id.  482. 

«  Hale  V.  Henrie,  2  Watts,  143. 

7  See  Fall  River  Whaling  Co.  ; . 
Borden,  10  Cush.  458;  Holmes  v.  Slix, 


CH.  v.] 


PARTNERSHIP    BILLS. 


'19 


Of  the  second  part  of  the  above-stated  qualification,  an  illus- 
tration may  be  found  in  Steward  r.  Blakevvay,^  where  it  was 
held  that  a  farm  and  (luarry  worked  by  co-owners,  in  partner- 
ship, and  additional  lands  bought  by  them  out  of  their  profits 
for  the  purposes  of  their  business,  were  not  to  be  treated  as  con- 
vertetl  into  money,  because  no  partner  could  have  enforced  a  sale 
of  the  property. 

514.  Sale  and  account. 

Both  the  realty  and  the  personalty  of  the  firm  may  be  sold 
by  order  of  court;  and  a  sale  is  generally  necessary  in  order  to 
effect  the  winding-up  of  a  concern ;  as  it  has  been  held  that  one 
partner  cannot  take  the  partnership  stock  at  a  valuation,  but  its 
value  must  be  ascertained  by  its  conversion  into  money.- 

An  account  is  a  part  of  the  relief  which  the  court  decrees  in 
partnership  bills.  This  account  is  taken  before  a  master,  who 
is  armed  with  the  necessary  powders  to  effectuate  the  object  for 
which  he  is  appointed.^  In  taking  the  partnership  accounts,  a 
surviving  partner  will  be  regarded  as  a  trustee,  and  will  be 
ordinarily  responsible  for  any  profits  which  he  may  have  made 
after  the  dissolution.'' 


515.  Winding-up  partnerships  ;  joint  and  separate  debts. 

After  the  partnership  assets  have  been  realized,  the  next  step 
is  their  appropriation  to  the  payment  of  partnership. liabilities. 
In  doing  this  the  court  applies  certain  ec^uitable  doc^trines  which 
might  not  improperly  fall  under  the  general  head  of  Adjustment, 
but  which  it  was  thought  might  be  more  advantageously  reserved 
for  consideration  in  the  present  connection. 

In  the  case  of  a  winding-up  of  a  solvent  concern  no  conflict 
between  the  rights  of  different  sets  of  creditors  can,  of  course, 
occur.     But  where  the  partnership  property  is  insuflficient  to 


104  Ky.  351;  Parsons  on  Partner- 
ship, 378,  note;  Story  on  Partner- 
ship, §  93,  note  (6th  ed.);  Am.  note 
to  1  Lead.  Cas.  Eq.  241  (3d  Am.  ed.). 

1  L.  R.  4  Ch.  603.  See  Thompson 
V.  Bowman,  6  Wall.  316. 

2  Sigournoy  r.  Munn,  7  Conn.  11; 
Dickinson  )'.  Dickinson,  29  Id.  600. 

3  Story's  Eq.  Jurisp.  §672.  In 
Enjiland  a  nvmibcr  of  statutes  (com- 
monly   known    as    the    Winding-Up 


Acts)  have  been  passed,  facilitating 
the  settlement  of  partnership  affairs. 
They  will  be  found  collected  and  dis- 
cussed in  Lindley  on  Partnership, 
Book  IV.,  Chap.  III.  (3d  Eng.  ed.). 
4  See  Phillips  v.  Atkinson,  2  Bro. 
Ch.  272;  Hartz  v.  Schrader,  8  Ves. 
317;  Waring  ?;.  Cram,  1  Pars.  Eq. 
Cas.  522;  Washburn  v.  Goodman,  17 
Pick.  519;  Case  v.  Abeel,  1  Paige  Ch. 
398;  Parsons  on  Partnership,  442. 


720 


PARTNERSHIP    BILLS. 


[part  III. 


meet  the  partnership  UabiHtics,  (lucstions  may,  and  frequently 
do,  arise  between  the  creditors  of  the  firm  and  the  creditors  cf 
individual  members  thereof. 

It  is  a  general  rule  in  ihc  first  place,  both  in  England  and  in 
this  country,  that  partnership  assets  must  be  applied  in  the 
first  instance  to  the  payment  of  partnership  debts. ^  This  is 
not  a  right  of  the  partn<>rship  creditors,  but  is  an  eciuity  of  each 
partner  that  the  firm  property  should  go  to  a  firm  creditor.  The 
eciuity  of  the  joint  creditors  depends  upon  and  must  be  worked 
out  through  the  medium  of  the  equities  of  the  partners  them- 
selves ;  -  and  a  bona  fide  waivtT  of  this  equity  by  the  partners 
cuts  otf  the  right  of  the  creditors.'"* 


1  Ex  parte  Cook,  2  P.  Wms.  500; 
Lindley  on  Partnership,  *6()2;  Mur- 
rill  r.  Neill,  8  How.  414;  Inbusch 
;•.  I'^irwell,  1  Black  (U.  S.),  566; 
Crooker  r.  ("rooker,  46  Me.  250;  52 
M.  267;  Treadwell  r.  Brown,  41 
A.  li.  12;  Fall  River  Whaling  Co. 
.'.  Honlen,  10  Cush.  458;  Witter 
■  .  'vichanls,  10  Conn.  37;  Morgan  r. 
Skilmore,  55  Barb.  26:>;  Hill  r. 
iViieli,  12  N.  .1.  p:q.  31;  Black's  Ap- 
I>cal,  44  Pa.  503;  McCormick's  Ap- 
peal, oo  Id.  252.  See  Story's  Eq. 
§  675;  Simmons  v.  Tongue,  3  Bland. 
3.56;  Tunno  v.  Trezevant,  2  Dess. 
270;  Lucas  v.  Atwood,  2  Stew.  (Ala.) 
37<S;  White  v.  Dougherty,  1  Mart.  & 
Yerg.  309;  Hubble  v.  Perrin,  3  Ham. 
287;  Talbot  v.  Pierce,  14  B.  Monr. 
105;  Converse  v.  McKee,  14  Tex.  20; 
Parsons  on  Partnership,  347  and  480. 
"The  extent  of  the  application  of  this 
rule,"  said  Cadwalader,  J.,  in  a  case 
in  the  (Circuit  Court  of  the  United 
States  for  the  Eastern  District  of 
Pennsylvania,  "  is  exemplified  where 
two  or  more  distinct  partnerships 
are  engaged  together  in  a  series 
of  particular  adventures  or  specu- 
lations by  sea  or  land.  The  accounts 
of  such  joint  concerns  are  properly 
stated  together  as  accounts  of  an 
aggregate  partnerships  of  which  each 
linn  is  one  member;  and  if  the  sex- 


era  I  firms  become  insolvent,  and 
their  affairs  are  judicially  adminis- 
tered, the  assets  which  arc  avails  of 
the  aggregate  investments  are  pri- 
marily applicable  in  payment  of  debts 
of  the  aggregate  concern  to  the  ex- 
clusion or  postponement  of  part- 
nership debts  of  the  several  firms." 
Potter  V.  Hick-s,  May,  1878,  Pam- 
phlet; 1!)  Fed.  Cas.  1154.  See  re- 
marks of  Lord  Justice  James,  in  Kx 
parte  Dewhurst,  L.  R.  8  Ch.  968, 
where,  however,  the  point  did  not 
arise. 

■2  Ex  parte  Ruffin,  6  Ves.  119; 
Campbell  ?•.  MuUett,  2  Swanst.  551, 
575;  Skipp  r.  Harwood,  Itl.  58(5; 
Allen  r.  The  C'entre  Valley  Co.,  21 
Conn.  130,  135;  Washburn  v.  Bank 
of  Bellows  Falls,  19  Vt.  278,  291; 
Doner  r.  Stauffer,  1  P.  &  W.  198; 
Lindley  on  Partnership,  *335  (5th 
ed.);  American  note  to  Silk  v.  Prime, 
2  Lead.  Cas.  Eq.  392,  393  (4th  Am. 
ed.);  Arnold  v.  Hagerman,  45  N.  J. 
Eq.  186;  Farwell  v.  Huston,  151  111. 
239;  Millhiser  r.  McKinley,  98  Va. 
207.  As  to  the  rights  of  an  ostensible 
partner,  see  Broadway  Nat.  Bk.  v. 
Wood,  165  Mass.  312,  which  seems  to 
be  in  conflict  with  Thayer  r.  Hum- 
phrey, 91  Wis.  276. 

■i  Reyburn  r.  Mitchell,  106  Mo.  365; 
Mansur-Tebbetts  Imp.  Co.  v.  Bruton, 


i 


CH.  v.] 


PARTNERSHIP    BILLS. 


"21 


516.  Separate  assets  of  deceased  partner  applied  in  the 
first  instance  to  payment  of  separate  debts. 

It  is,  inoreov(T,  the  rule  in  England  and  in  many  of  the  United 
States,  that  separate  assets  are  to  be  applied  in  the  first  instance 
to  the  payment  of  individual  debts;  and  that  the  joint  creditors 
are  entitled  only  to  the  surplus  after  such  payment.  In  many 
other  states,  however,  this  rule  has  not  Ix'en  followed.^  The 
origin  of  this  doctrine  appears  to  be  as  follows:  At  law  in  case 
of  the  death  of  a  partner,  the  survivor  alone  was  liable ;  the  estate 
of  the  deceased  i)artner  could  be  reached  only  in  ec^uity.'  But 
while  equity  regarded  the  estate  of  the  deceased  partner  as  as- 
sets for  the  payment  of  the  firm  debts,  it  was  careful  to  observe 
the  principles  which  govern  the  distribution  of  equitable  assets, 
among  which  is  the  doctrine  that  legal  priorities  must  be  ob- 
served. As  the  individual  creditors  'of  the  deceased  partner 
had  a  legal  right  to  be  satisfied  out  of  his  estate,  it  necessarily 
follows  that  this  right  must  be  first  regarded  before  the  purely 
ec^uitable  right  of  the  joint  creditors  could  be  enforced ;  in  other 
wortls,  the  latter  was  logically  postponed  to  the  former.  Hence, 
the  separate  estate  in  such  a  case  was  said  to  be  applicable,  in 
the  first  instance,  to  pay  the  separate  debts.  So  far  the  rule 
was  perfectly  logical ;  but  its  subsequent  extension  was,  perhaps, 
not  so.^ 

517.  Extension  of  this  doctrine  ;  English  rule. 

When  both  of  the  partners  of  a  firm,  of  which  the  assets  are 
in  the  course  of  distribution,  are  alive,  or  when  the  estate  to  be 
administered  is  that  of  the  surviving  partner,  the  joint  creditors 


159  Mo.  213;  Smith  v.  Smith,  87 
Iowa,  93;  Goddard  Peck  Co.  v.  Mc- 
Cune,  122  Mo.  426;  Huiskamp  v. 
Moline  Wagon  Co.,  121  U.  S.  310; 
Sclz,  etc.,  Co.  V.  Mayer,  151  Ind.  422; 
Noyes  ?;.  Ross,  23  Mont.  425;  Kin- 
caid  V.  Wall-Paper  Co.,  63  Kan.  288. 
But  where  the  waiver  is  mala  fide, 
the  rule  will  be  different.  Aiken  v. 
Steiner,  98  Ala.  355;  Bank  v.  Dur- 
fey,  72  Miss.  971;  Ewart  v.  Nave- 
McCord  Co.,  130  Mo.  112;  Bedford 
V.  McDonald,  102  Tenn.  358;  Bank 
V.  r'argason,  79  Miss.  64. 

iGray    v.    Chiswell,    9    Ves.    119; 

46 


Lindley  on  Partnership.  *59S;  Allen 
V.  Wells,  22  Pick.  453;  Bardwell  v. 
Perry,  19  Vt.  292;  Murray  v.  Murray, 
5  Johns.  Ch.  60;  Davis  v.  Howell,  20 
Am.  L.  Reg.  (n.  s.)  461,  and  note; 
Pars,  on  Partnership,  480,  548. 

2  Hamersley  v.  Lambert,  2  Johns. 
Ch.  508. 

3  See  American  note  to  Silk  v. 
Prime,  2  L.  Cas.  Eq.  391  (4th  Am. 
ed.),  where  the  authorities  are  ex- 
amined, and  the  rea.son  of  the  rule 
(as  stated  in  the  text)  explained. 
See,  also,  Ex  parte  Dear,  1  Ch.  D. 
514. 


722 


PARTNERSHIP    BILLS. 


[part  III. 


have  an  equal  legal  right  with  the  separate  creditors,  the  part- 
nership debts  being  both  joint  and  several.  In  such  cases  there 
is  no  reason  for  invoking  any  equity  in  favor  of  joint  creditors  to 
enable  them  to  reach  separate  assets,  because  they  are  alread}' 
(entitled  to  do  so  by  virtue  of  their  legal  position.  Hence,  as  th(> 
rights  of  all  parties  are  of  a  strictly  legal  character,  there  woukl 
seem,  logically,  to  be  no  reason  why  the  rights  of  one  set  of  cred- 
itors should  be  preferred  over  those  of  another  set;  in  other  words, 
wh}^  in  the  distribution  of  the  separate  estate,  the  separate  cred- 
itors should  have  any  priority  over  the  joint.  But  this  line  of 
reasoning,  however  sound  it  may  be  theoretically,  has  not,  in 
practice,  found  favor  with  the  English  courts.  The  rule  is  now 
well  settled  that  not  only  in  the  case  of  a  deceased  partner  leaving 
his  co-partner  surviving,  but  also  in  the  case  of  the  death  of  a  sur- 
viving partner,  or  in  the  winding-up  of  a  partnership  during  the 
lifetime  of  both  the  parties,  separate  assets  are  to  be  applied  in 
the  first  instance  to  the  payment  of  separate  debts,  and  that  joint 
creditors  are  not  entitled  to  come  in  until  individual  creditors 
are  satisfied.^  The  theory  upon  which  this  rule  is  based  appears 
to  be  that  as  joint  assets  are  applicable  in  the  first  instance  to 
joint  debts,  it  is  eciuitable  that  separate  assets  should  in  like 
manner  he  appropriated  to  separate  debts;  ^  and  it  has  been, 
therefore,  held  not  to  apply  to  those  cases  in  which  there  is  no 
partnership  property,  and  no  living  solvent  partner.  In  such 
cases  the  joint  creditors  have  a  right  to  come  in  against  the 
separate  assets  pari  passu  with  the  separate  creditors.^ 


1  Note  to  Silk  v.  Prime,  2  Lead. 
Cas.  Eq.  381  (4th  Am.  ed.).  This 
rule,  however,  will  not  be  applied  in 
cases  of  fraud.  Thus,  where  a  part- 
ner fraudulently  withdraws  fimds 
from  the  firm  and  appropriates  them 
to  his  own  use,  the  creditors  of  the 
firm  are  entitled  to  prove  against 
the  separate  estate  of  the  individual 
partner.  Read  v.  Bailey,  3  App.  Cas. 
94.  See,  also.  Ex  parte  Mayou,  4  De 
G.,  J.  &  S.  668;  In  re  Cook  &  Gleason, 

5  Russell,  122;  Ex  parte  Sillitoe,  1  Gl. 

6  J.  374,  382. 

2  "The  rules  so  laid  down  are  a 
sort  of  rough  code  of  justice,  be- 
cause some  rule  must  be  laid  down 


for  the  purpose  of  keeping  joint  and 
separate  estates  distinct,  and  for 
paying  the  joint  and  separate  cred- 
itors. But  this  is  a  mere  artificial 
distinction."  Per  James,  L.  J.,  in 
Lacey  v.  Hill,  L.  R.  8  Ch.  444.  See, 
also,  Davis  v.  Howell,  20  Am.  Law 
Reg.  (n.  s.)  461,  and  note. 

3  Story  on  Partnership,  §  380.  See 
In  re  Litchfield,  5  Fed.  Rep.  47.  See, 
however,  Warren  v.  Fanner,  100  Ind. 
.593.  The  subject  of  the  distribution 
of  joint  and  separate  estates  in  bank- 
ruptcy will  be  found  discussed  in 
Lindley  on  Partnership,  Book  IV., 
Chap.  IV.,  §  4. 


en.  v.] 


PARTNERSHIP    BILLS. 


723 


518.  Rule  in  Tucker  v.  Oxley. 

The  English  rule  upon  this  subject  has  been  adopted  in  many 
adjudged  cases  in  this  country,  including  at  least  one  decision 
by  the  Supreme  Court  of  the  United  States.^  But  the  same 
high  tribunal  has  decided  the  other  way  in  Tucker  v.  Oxley;- 
where  it  was  said  to  be  unjust  to  apply  the  estate  of  each  indi- 
vidual to  the  discharge  of  the  several  debts,  to  the  entire  exclu- 
sion of  the  joint  creditors,  who  previous  to  the  bankruptcy  of 
the  partners  had  a  legal  and  equitable  right  to  satisfaction  out 
of  the  separate  estate  of  each;  and  a  similar  conclusion  has  been 
reached  by  many  other  courts  throughout  the  I'nion.  In  these 
decisions,  however,  there  is  a  general  disposition  to  favor  the 
marshalling  of  assets,  so  as  to  compel  the  joint  creditors  to  resort,- 
^n  the  first  instance,  to  the  partnership  funds;  which,  it  would 
seem,  in  fairness  and  equity,  ought  to  be  done.  In  some  cases, 
indeed,  the  rule  in  Tucker  v.  Oxley  has  been  pushed  too  far;  and 
in  several  states  the  subject  has  been  regulated  by  statute.  It 
would  be  impossible,  in  a  treatise  hke  the  present,  to  enter 
minutely  into  these  different  decisions  and  legislative  enact- 
ments. All  that  can  be  done  is  to  state  the  English  rule,  and  the 
rule  in  Tucker  v.  Oxley,  with  the  theories  upon  which  these  two 
different  doctrines  appear,  respectively,  to  be  based .^ 

When  a  partnership  creditor  has  acquired  a  legal  priority  in 
respect  of  the  separate  estate,  such  priority  cannot  be  dist\u-]i(Ml 
by  the  equities  of  the  separate  creditors.  A  judgment  for  u 
partnership  debt,  for  example,  is  a  lien  upon  the  separate  real 
estate  of  the  partners;  and  priority  acquired  by  virtue  of  that 
lien  is  a  legal  right  which  the  cciuity  of  the  separate  creditors 
will  not  be  permitted  to  interfere  with."* 

519.  Bankruptcy  act  of  1898. 

The  Bankruptcy  Act  of  July  1,  1898,  provides,  in  its  fifth  si>c- 
tion,  that  the  net  proceeds  of  the  partnership  property  shall  be 


iMurrill  v.  Neill,  8  How.  414; 
American  note  to  Silk  v.  Prime,  2 
Lead.  Cas.  Eq.  381. 

2  5  Cranch,  34. 

^  See  note  to  Silk  r.  Prime  (ftupra), 
where  the  subject  is  elaborately  dis- 
cussed. See,  also,  Black's  Appeal,  44 
Pa.  503;  Kuhne  v.  Law,  14  Pich. 
(Law)  IS;  Story  on  Partnership, 
§  376,  and  notes. 


iMeech  v.  Allen,  17  N.  Y.  302; 
Wilder  v.  Keeler,  3  Paige  Ch.  171; 
National  Bank  v.  Sprague,  20  N.  J. 
Eq.  13,  .30.  In  New  Hampshire  the 
rule  is  different,  Jarvis  v.  Brooks,  3 
Foster,  136;  note  to  Silk  ?'.  Prime,  2 
Lead.  Cas.  Eq.  422.  See  further  on 
this  subject,  Averill  v.  Loucks,  G  Barb. 
470;  McCuUoh  r.  Dashiell,  1  liar.  & 
G.  &6;  Mower  v.  Kip,  6  Paige  Ch.  88. 


724  PARTNERSHIP    BILLS.  [PART  111. 

appropriated  to  the  payment  of  the  partnership  debts,  and  the 
net  proceeds  of  the  individual  estate  of  each  partner  to  the  pay- 
ment of  his  individual  debts;  that  any  surplus  of  any  individual 
(\state,  after  paying  individual  debts,  shall  go  to  firm  assets  for 
the  benefit  of  firm  creditors,  and  that  any  like  surplus  of  ])art- 
iKM'ship  property  shall  be  added  to  the  assets  of  the  indivi(kial 
l)artners,  in  proportion  to  their  respective  interests  in  the  firm. 
'1  he  act  further  provides,  in  the  same  section,  that  the  court 
shall  have  power  to  marshal  the  assets  of  partnership  estates, 
and  of  individual  estates,  so  as  to  prevent  preferences  and  secure 
the  equitable  tlistribution  of  the  property  of  both  estates.  While 
this  statute  continues  in  force,  the  difference  between  the  views 
explained  in  the  preceding  section  becomes,  of  course,  immaterial 
when  partnership  property  happens  to  be  distributable  under  the 
act. 

520.  Method  in  which  joint  creditors  may  collect  their 
debts. 

Before  leaving  the  discussion  of  the  equitable  remedy  by  part- 
nership bills,  one  or  two  other  matters  connected  with  the  general 
subject  of  partnership  may  properly  be  noticed. 

It  was  stated  above  that  the  right  to  have  partnership  assets 
applied  in  the  first  instance  to  the  payment  of  firm  debts,  is  an 
equity,  not  of  the  firm  creditors,  but  of  the  partners  themselves. 

It  is  a  consequence  of  this  doctrine  that  these  creditors  have 
no  standing  in  equity  to  restrain  any  disposition  of  partnership 
assets  until  they  have  exhausted  all  their  legal  remedies.  It  is 
not  until  they  have  endeavored  to  enforce  the  collection  of  their 
debts  by  execution  at  law  and  failed,  that  they  can  have  recourse 
to  a  bill  in  equity.^  Such  a  proceeding  is  termed  a  creditor's 
bill,  the  general  nature  of  which  will  be  explained  hereafter. 
By  means  of  such  a  bill,  after  an  execution  has  been  returned 
unsatisfied,  a  creditor  can  restrain  the  fraudulent  disposition  of 
property  which  ought  to  be  applied  to  the  payment  of  his  debt, 
or  may  reach  any  property  which  has  been  thus  fraudulently 
disposed  of. 

521.  Remedies  of  separate  creditors. 

The  fact  that  partnership  assets  are  to  be  applied  in  the  first 
instance  to  the  payment  of  firm  debts,  does  not  exempt  them 

1  Greenwood  v.  Brodhead,  8  Barb.  Prime.  2  Lead.  Cas.  Eq.  403  (4th 
(S.    C.)    593;    Am.    note    to   Silk    v.       Am.  ed.). 


CH.  v.]  PARTNERSHIP    lilLLS.  725 

from  liability  to  the  separate  debts  of  each  partner,  so  far  as  that 
individual's  interest  is  concerned,  and  subject  to  the  equities 
of  the  other  members  of  the  firm, 

A  separate  creditor  of  a  partner  has,  therefore,  a  right  to  issue 
an  execution  against  partnership  effects,  and  levy  upon  and  sell 
the  separate  interest  of  the  tlebtor  therein.  The  purchaser  at 
such  a  sale  does  not  acquire  an  absolute  and  entire  interest  in 
the  goods  sold,  but  only  a  right,  which  is  subject  to  the  para- 
mount right  of  the  other  partners  to  have  them  applied  to  the 
payment  of  the  firm  debts  should  the  financial  condition  of  the 
partnership  require  it,  and  also  to  any  balance  due  by  the  debtor 
upon  \he  settlement  of  accounts  between  himself  and  his  co- 
partners.   In  short,  he  has  the  right  to  call  for  an  account.^ 

The  principle  is  the  same  whether  the  transfer  is  the  act  of 
the  party  or  the  act  of  the  law,  and  is  applicable  to  a  voluntary 
assignment  for  the  benefit  of  creditors,  or  to  a  sale  made  by  a 
partner  individually  in  the  ordinary  course  of  business.^ 

Whether  an  injunction  can  be  issued  to  restrain  the  separate 
creditor  from  proceeding  to  a  levy  and  sale  of  the  partnership 
goods,  is  a  question  upon  which  the  authorities  are  somewhat 
conflicting.  Where,  however,  the  firm  is  insolvent,  and,  there- 
fore, the  separate  creditor  could  gain  nothing  by  his  execution, 
there  would  seem  to  be  much  reason  in  hokUng  that  equity  ought 
to  interfere  on  behalf  of  the  other  partners.^ 

523.  Joint  and  separate  executions. 

It  sometimes  happens  that  levies  under  executions  issued 
at  the  suit  of  both  joint  and  separate  creditors  are  made  simul- 
taneously, and  that  in  such  cases  questions  of  no  little  difficulty 
arise.  The  proper  course  for  the  sheriff  to  pursue  in  such  cases 
would  seem  to  be  to  sell  under  both  writs  in  the  order  of  time  in 
which  he  received  them,  and  leave  the  rights  of  the  parties  to  be 
decided  subsequently  in  equity.^  This  appears  to  be  the  course 
adopted  in  England.^    The  decisions  in  the  United  States  upon 

1  Story  on  Partnership,  §  263;  Am.  to  Silk  v.  Prime,  2  Lead.  Cas.  Eq. 
note  to  Silk  v.  Prime,  2  Lead.  Cas.      408. 

Eq.  409.    See,  also,  Taylor  v.  Fields,  3  Am.    note    to    Silk    v.    Prime,    2 

4  Ves.  396;  Bank  v.  Carrolton  Rail-  Lead.  Cas.   Eq.  411   et  seq.;  Story's 

road,  11  Wall.  628.  Eq.  Jurisp.  §  677. 

2  Taylor  v.  Fields,  4  Ves.  396;  Mc-  ■»  Am.  note  to  Silk  v.  Prime,  2  Lead. 
Nutt  V.  Strayhorn,  39  Pa.  269;  note  Cas.  Eq.  411  ef  seq. 

5  Id. 


726  PARTNERSHIP    BILLS.  [PART  III. 

this  point  are  not  uniform.  In  some  states  the  method  above 
stated  has  been  approved.  In  others,  the  separate  execution 
has  been  considered  as  superseded  by  the  joint  execution,  and  the 
separate  creditor  is  consequently  exckided.  The  English  course 
would  seem  to  be  most  conformable  to  principle ;  while  the  other 
view  has  convenience  in  its  favor.  When  such  a  coincidence  of 
executions  occurs,  the  joint  creditors  would,  perhaps,  have  the 
right  to  restrain  the  separate  creditors  by  injunction  if  the  firm 
is  insolvent.^ 

When  the  separate  interest  of  each  and  every  partner  is  levied 
upon  anil  sold  for  individual  debts,  it  has  been  held  that  the 
purchaser  will  take  the  whole  interest,  and  the  partnership  cred- 
itors can  subsequently  have  no  claim.^  The  equities  of  all  the 
partners  being  swept  away  by  the  sale,  the  rights  of  the  firm 
creditors  necessarily  fall  with  them.  But  if  before  such  sale  an- 
other levy  is  made  under  a  partnership  judgment,  the  purchase- 
money  under  such  a  levy  will  be  applicable  in  the  first  instance 
to  the  payment  of  the  partnership  debts.^ 

523.  Suits  between  firms  having  a  common  member. 

It  is  said  that  another  instance  in  which  equity  affords  relief 
in  partnership  cases  where  no  remedy  exists  at  law,  is  to  be  found 
in  those  cases  in  which  there  is  a  creditor  firm  and  a  debtor  firm 
having  a  common  member.  It  is  well  known  that  in  such  a  case 
no  common-law  action  would  lie,  as  no  person  can  be  both  plain- 
tiff aiul  defendant  in  the  same  suit.  "  But  there  is  no  difficulty  " 
(it  has  been  observed  by  a  writer  of  the  highest  authority)  "in 
proceedings  in  courts  of  equity  to  final  adjustment  of  all  the  con- 
cerns of  both  firms  in  regard  to  each  other."  ^  This  is  undoubt- 
edly true  when  the  affairs  of  either  partnership  have  for  any  rea- 
son been  brought  into  chancery  for  settlement.  But  it  may  be 
doubted,  with  (hie  deference  to  the  distinguished  authority  just 
cited,  whether  any  remedy  would  exist,  even  in  equity,  for  the 
simple  collection  of  a  debt  due  by  one  solvent  firm  to  another 
having  a  conmion  member.^  The  difficulty  has  in  some  states 
been  removed  by  statute. 

1  See  Am.  note  to  Silk  v.  Prime,  2  3  See  Coover's  Appeal,   29  Pa.  9; 
Lead.  Cas.  Eq.  411  et  seq.,  where  the  Menaghr.  Whitwell,  52  N.  Y.  156. 
subject   is  discussed.  *  Story's  Eq.  Jurisp.   §  680. 

2  Doner  r.  Stauffer,  1  P.  &  W.  198;  s  See  Article  in  5  American  Law 
Vandike's  Appeal,  57  Pa.  12.  Review,  47. 


CH.  v.]  PARTNERSHIP   BILLS.  727 

624.  Mines. 

It  has  been  said,  in  a  learned  work,  that  there  is  a  jurisdiction 
in  equity  similar  to  that  exercised  in  cases  of  partnership,  where 
mines  and  collieries  are  owned  and  worked  by  several  persons  in 
conmion.^  But  it  would  seem  that  where  there  is  a  joint  under- 
taking to  work  a  mine,  there  would  be  a  partnership  as  to  such 
working,  though  not  as  to  the  land,  and  would  fall  under  the 
ordinary  jurisdiction  in  partnership  cases .^  And  so,  also,  where 
there  was  evidence  that  the  whole  property  was  intended  to  be 
used  in  the  business,  then  the  partnership  wou'd  extend  to  the 
land.  In  the  absence,  however,  of  such  an  understanding  there 
would  appear  to  be  no  jurisdiction  apart  from  that  which  exists 
between  tenants  in  common.^ 

1  Adams's  Doct.  Eq.  247.  =*  See  Roberts  ?>.  Eberhardt,  Kay, 

2  See  Decker  v.  Howell,  42  Cal.  642.       148;  Garside  v.  Norval,  1  Alaska,  19. 


1 28      CREDITURS'    BILLS    AND    AUAILNISTKATIOX    SUITS.      [i'AKT  III. 


CHAPTER  VI. 


CREDITORS      BILLS    AND    ADMINISTRATION    SUITS. 


525.  Creditors'     bills;     are    of     two 

classes. 

526.  Creditors'  bills  against  a  debtor 

during    lifetime;    inefficiency 
of  common-law  executions. 

527.  Nature  and  effect  of  the  Equita- 

ble remedy. 

528.  Creditors'    bills    of    the    second 

class;  Administration  suits. 

529.  Not  of  great  importance  in  this 

country. 

530.  General  course  of  proceeding  in 

an  administration  suit. 

531.  Equitable    Assets;    doctrine    of 


comparatively    little    impor- 
tance. 

532.  Origin  of  the  doctrine. 

533.  Silk  V.  Prime. 

534.  Cook  V.  Gregson. 

535.  Doctrine  of  Performance. 

536.  Covenant  to  settle,  and  subse- 

quent purchase. 

537.  Covenant    to    pay,    and    subse- 

quent intestacy. 

538.  Satisfaction ;  of  debts  by  legacies. 

539.  Of  legacies  by  legacies. 

540.  Of  legacies  by  portions;  of  por- 

tions by  legacies. 


525.  Creditors'  bills  ;  are  of  two  classes. 

Creditors'  bills  are  bills  liled  bj^  creditors  for  the  purpose  of 
collecting  their  debts  out  of  the  real  or  personal  property  of  the 
debtor,  under  circumstances  in  which  the  process  of  execution  at 
common  law  could  not  afford  relief.  I'his  equital)le  remedy  may 
be  made  use  of  during  the  lifetime  of  the  debtor,  or  after  his 
death.  Creditors'  bills  filed  against  the  estate  of  a  decedent, 
generally,  though  not  necessarily,  partake  of  the  nature  of  ad- 
ministration suits,  and  will  be  considered  in  that  connection. 
Creditors'  bills  of  the  first  class — i.  e..  against  a  debtor  during 
his  lifetime — are  now  to  be  noticed. 


526.  Creditors'  bills  against  a  debtor  during  lifetime  ; 
ineftlciency  of  common-law  executions. 

Creditors"  bills  of  the  first  class  may  be  defined  to  be  bills 
filed  by  creditors  who  seek  to  satisfy  their  debts  out  of  some 
equitable  estate  of  the  defendant,  which  is  not  liable  to  levy 
and  sale  under  an  execution  at  law,  or  out  of  some  property 


CH.  VI.]      creditors"    bills    and    AUMIXISTRATIOX    SUITS.         729 

which  has  been  put  beyond  the  reach  of  ordinal*}'  legal  process.^ 
They  may  be  also  made  use  of  for  the  purpose  of  obtaining  dis- 
covery of  the  debtor's  property.- 

Bills  of  this  description  had  their  origin  iu  the  Hmited  scope 
of  the  ordinary  writs  of  execution.  These  writs,  being  common- 
law  writs,  were  confined  in  their  operation  to  legal  interests. 
Eciuitable  interests  could  be  reached,  if  reached  at  all,  in  e([uity 
alone.  It  is  true  that  the  Statute  of  Frauds  ^  gave  legal  execu- 
tion against  the  real  estate  of  which  any  person  was  seised  in 
trust  for  the  tlebtor  at  the  time  the  execution  was  sued  out.  But 
this  exception  was  obviously  very  limited  in  its  operation,  for  it 
did  not  extend  to  chattels  real,  to  trusts  under  which  the  debtor 
has  not  the  whole  interest,  to  eciuities  of  redemption,  or  to  any 
equitable  interest  which  had  'oecn  parted  with  before  execution 
sued  out.  This  narrowness  of  the;  coihmon-law  remedy  naturally 
led  to  a  jurisdiction  in  e(iuity  to  afford  the  necessary  relief.'* 

527.  Nature  and  effect  of  the  Equitable  remedy. 

Upon  a  bill  being  filed  in  a  proper  case,  the  equitable  property 
will  be  taken  into  the  possession  of  the  court  by  the  appointment 
of  a  receiver;  the  party  holding  the  legal  estate  will  be  restrained 
from  interfering  with  the  prosecution  of  the  creditors'  remedy; 
and  in  the  case  of  an  ec^uity  of  redemption,  the  judgment-creditor 
is  suffered  to  redeem.^ 


1  See  Newman  v.  Willetts,  52  IU. 
lOL  See,  also,  Hagan  v.  Walker,  14 
How.  29;  Trask  v.  Green,  9  Mich.  :i58; 
Botsford  V.  Beers,  11  Conn.  oG9; 
Weed  V.  Pierce,  9  Cow.  722;  Spader  v. 
Davis,  5  Johns.  Ch.  280;  20  Johns. 
554;  Bayard  v.  Hoffman,  4  Johns.  Ch. 
450;  Webster  v.  Folsom,  58  Me.  230; 
Warner  v.  Moran,  60  Id.  227;  Dodge 
V.  Griswold,  8  N.  H.  425;  Barry  r. 
Abbott,  100  Mass.  396;  Lillard  i-. 
McGee,  4  Bibb,  165;  Trippe  l'.  Lowe, 
2  Kelly,  304;  Thurmond  v.  Reese,  3 
Id.  449;  Eliot  v.  Merchants'  Exch., 
14  Mo.  .\pp.  234  (a  case  of  a  seat  in 
the  Merchants'  Exchange) ;  Dargan  v. 
Waring,  11  Ala.  988,  993;  Dunphy  r. 
Kleinsmith,  11  Wall.  614;  Belcher 
V.  Arnold,  14  R.  I.  613;  Tantum 
V.  Green,  21  X.  J.  Eq.  364;  Hall  ;-. 


Joiner,  1  S.  C.  (v.  s.)  186;  Turner 
V.  Adams,  46  Mo.  95;  Farnsworth  v. 
Strasler,  12  111.  482;  Dodd  r.  Levy, 
10  Mo.  App.  121;  German  Nat.  Bank 
V.  First  Nat.  Bank,  55  Neb.  86.  As 
to  obtaining  priority  by  filing  a  cred- 
itor's bill,  see  Pallis  v.  Robinson,  73 
Mo.  201;  Boyle  r.  Maroney,  73  la. 
70;  Hancock  v.  Wooten,  107  N.  C.  9; 
Weckerly  v.  Taylor.  74  Neb.  84. 

2  Newman  v.  Willetts,  52  111.  101; 
Schofield  v.  Ute  Coal  and  Coke  Co., 
34  C.  C.  A.  334. 

3  29  Car.  II.,  c.  2,  §  10. 

■•  Gullicksen  v.  Madsen,  87  Wis.  19. 

5  See  Adams's  Doct.  Eq.  129; 
Smith  and  Wolf's  Appeal,  104  Pa. 
381 ;  Shamwald  !'.  Lewis,  7  Sawyer  C. 
C.  Hep.  148,  and  People's  Nat.  Bank 
of  Pittsburg  V.  Looffert,  184  Pa.  172. 


730     creditors'  bills  and  aumixistratiox  suits,     [part  III. 


Bills  of  this  description  are  still  made  use  of  in  England,  al- 
though the  efficacy  of  the  common-law  writs  of  execution  has 
been  much  increased  by  legislation;  and  they  are  of  very  fre- 
tjuent  occurrence  in  many  of  the  United  States.  The  threefold 
advantage  of  reaching  property  otherwise  exempt,  of  setting 
aside  fraudulent  conveyances,^  and  of  discovery,  renders  a  cred- 
itor's bill  a  very  effective  instrument  for  the  collection  of  debts.- 
Ihe  jurisdiction  of  a  court  of  ec[uicy,  it  has  been  said,^  to  reach 
property  of  a  debtor  justly  applicable  to  the  payment  of  his 
debts,  even  where  there  is  no  specific  lien  on  the  property,  is 
undoubted;  it  is  a  very  ancient  jurisdiction.  And,  again,  it  has 
been  said  that  while  courts  of  equity  are  not  tribunals  for  the 
collection  of  debts,  yet  they  afford  their  aid  to  enaVjle  creditors 
to  obtain  payment,  when  their  legal  remedies  have  proved  to  bi^ 
inadequate.'' 

The  leading  authorities  upon  the  subject  in  the  United  States 
may  be  said  to  be  Spader  v.  Davis  ^  and  Bayard  v.  Hoffman.^ 
In  these  cases  Chancellor  Kent,  basing  his  opinion  upon  some 
early  English  decisions,'^  held  that  in  cases  of  fraudulent  aliena- 


This  last  is  an  interesting  case,  as 
illustrating  the  extent  to  which 
equity  will  go  where  a  debtor  has 
placed  improvements  upon  the  realty 
of  a  third  party  who  connives  with 
the  debtor  to  defraud  the  creditors 
of  the  latter.  In  such  cases  the  cred- 
itors can  maintain  an  equitable  lien 
on  the  property  to  the  extent  of  the 
value  of  the  improvements.  Ante, 
§  242.  See,  also,  in  this  connection, 
Huntington  v.  Jones,  72  Conn.  45, 
whore  trustees  agreed  to  anticipate 
pa>'ments  to  a  cestui  que  Iruat,  and 
Lippincott  v.  Evans,  35  N.  J.  Eq. 
55o,  where  the  property  was  held 
not  to  be  liable  to  a  bill. 

'  Ilousemann  r.  Grossman,  177  Pa. 
453. 

-  \  patent  right  may  be  subjected 
by  a  bill  in  equity  to  the  payment  of 
a  judgment  debt  of  the  patentee. 
Agar  V.  .Murray,  105  U.  S.  126; 
viillett  V.  Bate,  86  N.  Y.  87.  See, 
h'jwever,  under  the  Massachusetts 
statute,   Carver  v.  Peck,   131   Mass. 


291;  and  under  the  limited  equi- 
table jurisdiction  of  the  Penn,sylvania 
courts,  Bakewell  v.  Keller,  II  W.  N. 
C.  300,  where  it  was  held  that  such 
a  bill  would  not  lie.  (This  is  now 
corrected  by  the  .\ct  of  1889,  P.  L. 
172.)  See,  moreover,  Gilman  v. 
Bell,  99  111.  144,  where  it  was  held 
that  equity  would  not  compel  the 
donee  of  a  power  to  execute  it  in  his 
own  favor  at  the  instance  of  creditors. 

^  By  Mr.  Justice  Field  in  The  Pub- 
lic Works  V.  Columbia  Coll.,  17  Wall. 
521. 

-  By  Justice  Harlan  in  Taylor  r. 
Bowker,  111  U.  S.  110.  See  People's 
Bank  v.  Loeffert,  184  Pa.  164,  for  an 
illustration  of  the  extent  to  which 
this  relief  will  be  carried,  and  an  ex- 
planation of  the  principle  on  which 
it  is  based  by  Mr.  Justice  Fell. 

5  5  Johns.  Ch.  280;  on  appeal, 
nomine,  Hadden  v.  Spader,  20  Johns. 
554. 

«  4  Johns.  Ch.  4.52. 

'  Taylor  *;.  Jones,  2  Atk.  600;  King 


cH.vj.]     creditors'   bills  and  administration  suits.    731 


tion  courts  of  equity  ought  to  interfere,  whether  the  property 
could  be  reached  by  execution  at  law  or  not.  Since  the  time  oi 
these  decisions  the  equitable  remedy  by  creditors'  bill  has  been 
extensively  used  in  many  of  the  United  States,  and  its  efficiency 
has  been  much  increased  in  several  states  by  statute;  and  in 
some  instances  the  remedy  is  expressly  specified  in  the  grant  of 
chancery  powers  to  the  courts. 

As  this  remedy  is  based  upon  the  incapacity  to  obtain  relief 
at  common  law,  it  is  incumbent  upon  the  complainant,  as  a 
general  rule,  to  show  that  he  has  exhausted  his  conmion-law 
remedies  before  resorting  to  equity.^  This  is  generally  done 
by  showing  that  he  has  obtained  a  judgment,-  has  issued  execu- 
tion, and  that  there  has  been  a  return  thereon  of  nulla  bona.^ 
And  these  facts  must  be  alleged  in  the  bill  to  give  the  court 


V.  Marissal,  .3  Id.  192;  Horn  v.  Horn, 
Ambl.  7!).  Of  this  last  case,  Lord 
Thurlow  is  reported  to  have  said: 
"  The  opinion  in  Horn  v.  Horn  is  so 
anomalous  and  unfounded  that  forty 
such  opinions  would  not  satisfy  me." 
CJrogan  v.  Cooke,  2  Ball.  &  Beat.  2:V.i. 
The  reasoning  of  Lord  Thurlow 
prevailed  in  the  English  law,  and 
the  consequence  was,  that  it  subse- 
qviently  was  found  necessary  to  make 
chases  in  action  liable  to  execution 
by  statute.  See,  upon  the  subject, 
Green  i'.  Keene,  14  R.  I.  388,  and 
First  Nat.  Bk.  of  Shreveport  v.  Ran- 
dall, 20  R.  L  (Part  XL)  81. 

1  Newman  v.  Willetts,  52  111.  101 ; 
Hall  V.  Joiner,  1  S.  C.  (.v.  s.)  13G. 
See  Suydam  v.  The  N.  W.  Ins.  Co., 
51  Pa.  .394;  Page  r.  Heath,  56  Id. 
223;  Bickley  v.  Paul,  11  Phila.  257; 
.\lbright  V.  Herzog,  12  111.  App.  557; 
Tyler  v.  Peatt,  30  Mich.  63;  Bassett 
r.  St.  Albans  Co.,  47  Vt.  312;  Frost 
V.  Libby,  79  Me.  56;  Smith-Dimmick 
Lumber  Co.  v.  Teague,  119  Ala.  385. 
Judgment  in  a  United  States  court  is 
no  basis  for  such  a  bill  in  a  state 
court,  Winslow  v.  Leland,  128  111. 
304.  It  has  been  ruled  that  where 
the  property  of  a  debtor  can  be  ef- 
fectually   reached   by  Ji.  fa.    or   by 


attachment,  a  creditor's  bill  will  not 
lie.  Bank  v.  Kern,  193  Pa.  66. 

2  But  obtaining  a  lien  by  attach- 
ment has  been  held  to  be  sufficient, 
Bennett  v.  Minott,  28  Oreg.  339. 

3  See  Jones  v.  Green,  1  Wall.  332; 
Becki;.  Burdett,  1  Paige  Ch.  305,  308; 
Brinkerhoff  i\  Brown,  4  Johns.  Ch. 
671;  Williams  v.  Brown,  Id.  682;  Mc- 
Dermutt  v.  Strong,  Id.  687;  Hen- 
dricks V.  Robinson,  2  Id.  283;  Brown 
V.  Long,  1  Ired.  Eq.  190;  McNairy  v. 
Eastland,  10  Yerg.  310,  319;  Stone 
V.  Manning,  2  Scam.  530;  Manchester 
V.  McKee,  4  Gilm.  511;  Matarese  v. 
Caldarone,  26  R.  I.  348;  Miller  v. 
Davidson,  3  Id.  518;  Dornmeel  v. 
Ward,  108  111.  216;  Reese  v.  Brad- 
ford, 13  Ala.  837;  Webster  v.  Clark, 
25  Me.  313;  Tappan  v.  Evans,  11 
N.  H.  312;  Allen  v.  Montgomery,  48 
Miss.  106;  Hamlen  v.  McGillic\iddy, 
62  Me.  268  (as  to  sufficiency  of  spe- 
cial return  amounting  to  nulla  bona); 
note  to  Sexton  v.  Wheaton,  1  Am. 
Lead.  Cas.  54,  55;  Beidler  v.  Douglas, 
35  111.  App.  124;  Vicks.  &  M.  R.  Co. 
V.  Phillips,  64  Miss.  108.  This  is 
no  longer  the  rule  in  South  Carolina. 
State  V.  Foot,  27  S.  C.  340.  Nor  in 
North  Carolina,  Hancock  v.  Wooten, 
107  N.  C.  9. 


1?>2      CREDITORS 


BILLS   AND    AD.MIXISTKATION    SUITS.      [I'ART  III. 


jurisdiction,  for  otherwise  it  would  not  appear  but  that  the 
party  had  a  complete  remedy  at  law.^  I'his  rule,  though  a 
stringent  one,  is  nevertheless  not  without  exceptions.  A  judg- 
ment followed  by  a  fruitless  execution,  however,  is  only  evidence 
that  the  legal  remedies  have  been  exhausted,  and  if  the  futility 
of  resorting  to  process  at  law  is  shown  by  other  proofs,  such  as 
(for  instance)  an  alleged  fraudulent  assignment  by  an  insolvent 
debtor  of  all  his  property,  suing  out  execution  would  be  an  idle 
ceremony,  and  would  not  be  required  before  filing  a  bill.'  An 
exception  is  made,  for  instance,  in  New  Jersey  and  Oregon  in 
favor  of  an  attaching  creditor,  because  by  the  law  of  those  states 
an  attaching  creditor  by  his  writ  obtains  a  lien  on  the  property. 
Other  instances  w'ill  be  found  in  the  notes.^ 

The  filing  of  a  creditor's  1)111,  and  the  service  of  process  creates 
a  lien  in  equity  upon  the  effects  of  a  judgment-debtor.  It  has 
been  aptly  termed  an  ''equitable  levy."  '*  It  may  be  filed  by 
one  creditor  alone,  or  by  one  on  behalf  of  himself  and  all  others 
who  choose  to  come  in.^ 

Bills  of  this  description  are  sometimes  employed  for  the  pur- 


1  NewTnan  v.  Willetts,  52  111.  101; 
Nat.  Tube  Co.  r.  Ballou,  146  U.  S. 
517.  See,  in  this  connection,  Smith 
V.  Bourbon  Co.,  127  U.  S.  105;  The 
Northwestern  Iron  Co.  v.  The  Cen- 
tral Trust  Co.,  90  Wis.  570,  and 
Jcnks  V.  Horton,  114  Mich.  48. 

2  Case  V.  Beauregard,  101  U.  S. 
688-690;  Sage  v.  Memphis  &  Little 
Rock  R.  R.  Co.,  125  Id.  361;  Talley 
V.  Curtain,  8  U.  S.  App.  347;  Mer- 
chants' Nat.  Bank  v.  Greenhood,  16 
Mont.  395;  Blair  r.  Illinois  Steel  Co., 
169  III.  350;  Springer  v.  Puttkamer, 
Id.  567;  Fleischner  v.  Bank  of  Mc- 
Minnville,  36  Oreg.  553;  Freeman  v. 
Stuart,  119  Ala.  1.58. 

3  See  Sage  v.  Memphis  &  Little 
Rock  Railroad  Co.,  125  U.  S.  .361; 
Brown  v.  Lake  Superior  Iron  Co.,  134 
Id.  530;  Francis  v.  Lawrence,  48 
N.  J.  Eq.  508;  Dawson  ??.  Sims,  14 
Oreg.  561;  Turner  r.  .\dams,  46  Mo. 
95;  Payne  v.  Sheldon,  63  Barb.  169; 
Botsford  V.  Beers,  11  Conn.  369; 
Huntington    v.    Jones,    72    Id.    45; 


Stephens  v.  Beal,  4  Ga.  319;  Tappan 
V.  Evans,  11  N.  H.  311;  Merchants' 
Nat.  Bank  v.  Paine,  13  R.  I.  592; 
.\igeltinger  v.  Einstein,  143  Cal.  609; 
Bay  V.  Cook,  31  111.  336;  Dillman 
V.  Nadelhoffer,  162  Id.  625;  Ticonic 
Bank  t;.  Harvey,  16  la.  141;  Logan 
V.  Logan,  22  Fla.  561;  Binnie  v. 
Walker,  25  111.  App.  82;  Reyburn 
V.  Mitchell,  106  Mo.  365;  Ready  v. 
Smith,  170  Mo.  163;  Stephens  v. 
Parvin,  33  Colo.  60. 

4  Tilford  V.  Burnham,  7  Dana,  110; 
Miller  v.  Sherry,  2  Wall.  249;  Mer- 
cantile Trust  Co.  V.  Southern  States 
L.  &  T.  Co.,  30  C.  C.  A.  358;  King  r. 
Goodwin,  130  111.  102;  Taylor  r. 
Taylor,  59  N.  J.  Eq.  86;  Davidson  ?•. 
Burke,  143  111.  1.39.  But  (it  was  h.  1! 
in  a  North  Carolina  case)  only  uii 
equitable  assets,  Bank  v.  Bank,  127 
N.C.  432. 

5  Hendricks  v.  Robinson,  2  J.  C. 
R.  283.  See  Saxton  r.  Davis,  18 
Ves.  78,  82,  and  St.  Louis  v.  O'Neil 
Lumber  Co.,  114  Mo.  74. 


CH.  VI.]     creditors'  bills  and  administration   suits.      733 

pose  of  subjecting  the  separate  property  of  married  women  to 
the  payment  of  their  debts. ^ 

Still  more  frequently  in  modern  times  have  creditors'  bills, 
or  bills  in  the  nature  of  creditors'  bills,  been  entertained  for  the 
relief  of  creditors  of  insolvent  corporations.^  The  jurisdiction 
of  Courts  of  Chancery  in  such  cases  may  be  placed  partly  on 
the  advantages  of  the  ec^uitable  remedy  now  under  consideration, 
and  partly  on  the  nature  of  corporate  property.  It  has  been 
held  in  some  cases,  that  in  equity  the  capital  stock  of  a  corpora- 
tion is  a  trust  fund  for  the  payment  of  its  debts;  and  that  the 
liabilities  of  subscribers  to  capital  stock  and  the  dealings  of  stock- 
holders with  shares  are,  in  equity,  to  be  determined  and  regulated 
largely  with  reference  to  this  fiduciary  natiux*  of  the  capital 
stock.  The  leading  case  upon  the  subject  in  this  country  may  be 
said  to  be  Sawyer  v.  Hoag,  decided  by  the  Sujireme  Court  of  the 
United  States  in  1873.^  This  case  has  been  followed  by  others 
in  the  Federal  tribunals;  and  similar  decisions  have  been  made 
in  state  courts.'*  Whether,  however,  the  stock  of  a  corporation 
is  to  be  regarded  as  a  trust  fund  has  been  doubted.  But  what- 
ever the  grounds  of  the  jurisdiction  may  be,  its  existence  is  well 
established ;  and  by  bills  in  such  cases,  in  the  nature  of  creditors' 
bills,^^  unpaid  subscriptions  to  capital  stock  may  be  collected,  the 


1  See  Lillia  v.  Airey,  1  Ves.  Jr. 
277;  Methodist  Episcopal  Church  v. 
Jaques,  1  Johns.  Ch.  450;  Todd  v. 
Lee,  15  Wis.  365;  Kerr  on  Receivers, 
57  (■2d  Am.  ed.). 

-  Barber  v.  International  Co.  of 
Mexico,  73  Conn.  587.  A  court  of 
equity  has  the  power  to  review  the 
question  of  the  reasonableness  of 
salaries  for  the  personal  services  of 
directors  as  corporate  officers,  though 
fixed  by  the  stockholders,  especially 
where  the  salary  was  fixed  by  the 
vote  of  the  director  as  a  majority 
stockholder  for  his  own  benefit. 
Lillard  r.  Oil  Co.,  70  N.  J.  Eq.  197. 

3  Sawyer  v.  Hoag,  17  Wall.  610. 

*  .\mong  the  authorities  on  this 
subject  are  Sawyer  v.  Upton,  91 
U.  S.  56;  Hatch  v.  Dana,  101  Id.  205; 
County  of  Morgan  v.  Allen,  103  Id. 
498;  Crandall  v.  Lincoln,  52  Conn.  73; 


Messersmith  ik  Sharon  Savings  Bank, 
96  Pa.  440;  Bell's  Appeal,  115  Id.  88; 
Bailey  v.  Pittsburg  Coal  R.  R.  Co., 
139  Id.  213;  First  Nat.  Bk.  v.  Gus- 
tin  Min'g  Co.,  42  Minn.  327  (it  may 
be  noted  that  the  same  court  de- 
cided differently  in  Hospes  v.  Northw. 
Mfg.,  etc.,  Co.,  48  Minn.  174);  and 
Vermont,  etc.,  Co.  v.  Declez  Co., 
135  Cal.  579.  See,  also,  Spelling  on 
Corp.  §  790;  Handley  v.  Stutz,  139 
U.  S.  417,  and  article  in  25  Am.  Law 
Rev.,  p.  749,  by  R.  C.  McMurtrie, 
Esq. 

5  By  a  bill  in  the  nature  of  a  cred- 
itor's bill,  stockholders  of  an  insol- 
vent corporation  may  be  compelled 
to  pay  the  difference  between  the 
par  value  of  stock,  and  the  reason- 
able value  of  property  conveyed  in 
payment  of  subscriptions.  Picker- 
ing V.  Townsend,  118  .\la.  351. 


734      creditors'    bills   and    administration    suits.      [i'ART  III, 


fraudulent  disposition  of  corporate  assets  may  be  enjoined,  and 
the  administration  of  corporate  property  for  the  benefit  of 
creditors  and  others  may  be  secured.^  The  personal  liability  of 
directors  may  be  enforced  by  such  l)ills,  ~  and,  indeed,  in  some 
jurisdictions  such  liabilitj^  is  enforceable  in  equity  alone.^ 

The  subject  was  considered  in  the  year  1886,  by  the  Supreme 
Court  of  Pennsylvania  in  Penn  Bank  v.  Hopkins,^  just  cited, 
and  the  ruling  of  the  court  in  that  case  may  be  usefully  referred 
to,  not  only  because  it  reiterated  the  general  doctrine  that  a 
creditor's  bill  may  be  maintained  against  the  directors  of  an 
insolvent  corporation  for  the^  mismanagement  of  its  affairs, 
but  also  because  it  illustrates  two  of  the  points  which  not  unfre- 
quentl}^  arise  in  such  cases.  It  there  appeared  that  an  insohcnt 
corporation  had  made  an  assignment  for  the  benefit  of  its  cred- 
itors, and  that  certain  of  the  creditors  had  subsec|uently  filed 
a  bill  against  the  directors  of  the  corporation  to  which  the  as- 
signee for  the  benefit  of  creditors  was  made  a  party  defendant. 
It  was  held,  in  the  first  place,  that  the  bill  in  equity  prevented 
any  suit  at  common  law  from  being  brought  by  the  assignee,  in 
the  name  of  the  corporation,  against  the  directors  for  the  same 
cause  of  action,  and  that  the  pendency  of  the  creditor's  bill  was  a 
good  plea  in  the  abatement  of  the  action  at  law.  It  was  ruled,  in 
the  second  place,  that  where  the  wrong  complained  of  is  perpe- 
trated by  the  directors  themselves,  it  is  not  necessary  to  show 
that,  before  the  bill  was  filed,  there  had  been  a  demand  upon  the 
corporation  to  proceed,  and  a  refusal  on  its  part  to  do  so.^ 

Still  more  recently,  the  right  of  a  single  judgment-creditor 
of  a  corporation  to  invoke  chancery  aid  for  the  purpose  of  col- 
lecting his  debt,  was  considered  by  the  Supreme  Court  of  the 
United  States,  in  Sage  r.  Memphis  and  Little  Rock  Railroad 

iSee  Hollins  v.  Brierfield  Co.,  150  »  Stone  v.  Chisolm,  113  U.  S.  302; 

U.  S.  371 ;  Lane's  Appeal,  105  Pa.  49; 
Trust  Company  v.  Loan  Co.,  92  Me. 
444;  Barton  Nat.  Bank  v.  Atkins,  72 
Vt.  33;  Brown  v.  Fisk,  23  Fed.  Rep. 
228;  Tunesma  v.  Shuttler,  114  111. 
156;  Rounds  v.  McCormick,  Id.  253; 
Olney  v.  Conanicut  Co.,  16  R.  I. 
597;  Vermont,  etc.,  Co.  v.  Declez 
Co.,  135  Cal.  579;  Cook  v.  Carpenter, 
212  Pa.  165. 

2  Penn  Bank  v.  Hopkins,  111  Pa. 
328. 


Chase  v.  Curtis,  Id.  452;  Winchester 
V.  Mabury,  122  Cal.  522. 

4  111  Pa.  328. 

5  Upon  this  last  point,  see,  also, 
the  cases  cited  under  the  head  of 
Fraud  by  Directors  and  Promoters 
of  Companies,  ante,  §§  238  and  239; 
and  Marsh  v.  Kaye,  168  N.  Y.  196; 
Montgomery  Traction  Co.  v.  Har- 
mon, 140  Ala.  505. 


CH.  \  1.]    creditors'   bills  and  administration  suits.       73o 

Company.^  That  was  a  case  in  which  the  bill  alk^ged  that  the 
property  of  the  company  was  so  heavily  mortgaged  that  if  the 
plaintiff  should  attempt  to  enforce  payment  of  his  debt  by 
seizure  and  sale  on  execution,  there  would  be  no  bidders  at  more 
than  a  nominal  amount;  whereas,  if  the  property  were  placed  in 
the  hands  of  a  receiver  a  surplus  for  the  payment  of  the  plaintift  's 
debt  would  result.  It  was  held  that  these  averments  were  suf- 
ficient to  give  the  court  the  jurisdiction  claimed,  and  that  the 
facts  of  the  case  justified  its  exercise. 

528.  Creditors'  bills  of  the  second  class ;  Adiniuistratioii 

suits. 

Creditors'  bills  of  the  second  class — i.  e.,  those  which  are  filed 
after  the  death  of  the  debtor — generally  result  in  an  administra- 
tion of  his  estate,  because  the  exedutor  or  administrator  does  not 
generally  admit  assets  in  his  answer.  If,  however,  assets  are 
admitted,  the  debt  of  the  creditor  who  files  the  bill  will  W  col- 
lected, but  there  will  be  no  decree  for  the  general  administration 
of  the  estate.  In  most  cases,  however,  there  is  no  admission  of 
assets,  and  the  court  then  goes  on  to  ascertain  what  the  assets  arc, 
to  get  them  in,  and  to  distribute  them  properly  among  creditors, 
legatees,  and  other  parties  interested.  AMien  bills  for  getting  in 
and  distributing  the  estate  of  a  decedent  are  filed  by  legatees, 
they  are  termed  .Administration  Suits.  The  principles  which 
govern  the  action  of  the  court  in  administration  suits,  and  in 
creditors'  bills  where  no  assets  are  admitted,  are  the  same  and 
may  be  considered  together.  A  bill  for  administration  ma}^  also 
be  filed  by  an  ex(>cutor  or  administrator  who  (in  England)  could 
only  obtain  conij^lete  (exoneration  by  having  his  accovmts  passed 
in  chancery,  and  was,  therefore,  entitled  to  insist  upon  that  pro- 
tection.- 

521).  Not  ot  sreat  importance  in  this  country. 

Bills  for  the  administration  of  the  estates  of  decedents  arc  ot 
much  less  importance,  and  of  much  less  frequent  occurrence,  in 
this  country  than  in  Engiahd,  as  the  distribution  of  such  assets  is, 
in  most  states,  vested  by  statute  in  Probate  or  Orphans'  Courts, 
or  similar  tribunals. •''     In  some  states,  however,  the  jurisdiction 

1  125U.  S.  :!tn.  »See    Boanl    of    I'uhlio    Works    r. 

2  Adams's  Eq.  257.  Sec,  also,  Columbia  College,  17  Wall.  .321; 
Brown  v.  McDonald,  1  Hill  Cli.  oOU;  Frost  r.  Libby,  7'J  Me.  56;  Ward  f. 
Adams  v.  Dixon,  lU  Ca.  513.  Wood,  32  111.  App.  289. 


736    creditors'  imlls  and  admixistratiox  suits,    [part  hi. 


of  chancery  by  administration  suits  is  expressly  conferred  upon 
the  courts;  and  in  some  instances  the  equitable  remedy  has  to  be 
invoked  in  order  to  meet  cases  which  cannot  be  properly  dealt 
with  in  other  tribunals.^  It  will,  therefore,  be  proper  to  state 
briefly  the  nature  of  this  equitable  remedy,  and  the  doctrines 
which  are  generallj^  incidental  thereto. 

530.  General  course  of  proceeding  in  an  administration 
suit. 

Administration  bills  are  usually  filed  by  one  or  more  creditors 
or  legatees  on  behalf  of  all ;  ^  and  the  decree,  on  such  bills,  is  for 
a  general  account  of  the  debts,  and  for  an  account  and  applica- 
tion of  the  personal  assets.  If  the  personal  estate  should  prove 
insufficient,  a  decree  will  be  made  against  the  realty.''*  'I  he  bill 
enures  to  the  benefit  of  all  the  creditors  who  may  come  in  and 
prove  their  debts  under  it,  so  as  to  prevent  the  running  of  the 
Statute  of  Limitations;  but  up  to  the  time  of  the  decree  for  an 
account,  the  suit  is  under  the  control  of  the  creditor  who  has 
filed  the  bill.  After  the  decree  the  case  is  different,  as  the  fund 
is  then  in  court,  and  the  creditor  w^ho  has  filed  the  bill  ceases  to 
have  absolute  control  of  the  suit. 

Upon  the  filing  of  the  executor's  answer,  the  balance  ad- 
mitted therein  to  be  in  his  hands  is  ordered  to  be  paid  into  court ; 
and,  if  the  circumstances  warrant  such  a  course,  a  receiver  of  the 


1  See  Hagan  v.  Walker,  14  How. 
33,  where  a  bill  was  filed  by  a  cred- 
itor of  a  deceased  debtor  against  the 
administrator,  and  a  party  who  was 
fraudulently  holding  property  of  the 
deceased,  which,  in  equity,  should 
have  been  applied  to  the  payment  of 
his  debts.  See,  also,  Fowler's  .Ap- 
peal, 87  Pa.  454  (where  the  subject 
is  cxhaiistivcly  discu.ssed) :  Frey  r. 
Demarest,  Ki  X.  .J.  Eq.  236;  Dor- 
sheimcr  v.  Rorback,  23  Id.  52;  Lup- 
ton  V.  Lupton,  2  Johns.  Ch.  614; 
Pharis  v.  Leachman,  20  Ala.  662; 
Ligon  V.  Ligon,  105  Ala.  460;  Pratt 
v.  Northern,  5  Mass.  95;  Reader  i'. 
Speake,  4  S.  C.  393;  Freeland  v. 
Dazey,  25  111.  294;  Carrington  v. 
Didier,  S  Gratt.  260;  Sabel  v.  Sling- 
lulT,  52  Md.  132;  Farrar  v.  Hazclden, 


9  Rich.  Eq.  336;  Garner  v.  Lyles,  35 
Mi.ss.  184;  Walker  v.  Morris,  14  Ga. 
323;  Brown  v.  McDonald,  1  Hill  Ch. 
300;  Adams  v.  Dixon,  19  Ga.  513; 
Buskirk  v.  Peck,  57  W.  Va.  360; 
Thompson  r.  Brown,  4  Johns.  Ch. 
619;  McKay  r.  Green,  3  Id.  56;  Wins- 
low  V.  Leland,  128  111.  304;  Alex- 
ander V.  Leakin,  72  ^Id.  199;  Meyer 
r.  Garthwaite,  92  Wis.  571;  AuU  v. 
St.  Louis  Trust  Co.,  149  Mo.  1. 
See  Thompson  v.  Tappen,  5  Johns. 
Ch.  518,  where  an  injunction  to  re- 
strain   a    suit   at   law   was   refused. 

2  See  Thompson  v.  Brown,  4  Johns. 
Ch.  616;  Hazen  v.  Durling,  2  N.  J. 
Eq.  133;  but  see  Beverly  v.  Rhodes, 
86  Vt.  415. 

3  See  Adams's  Doct.  Eq.  258. 


CH.  VI.]     creditors'   hills  and  administration  suits.      737 

outstanding  personalty,  and  the  rents  of  the  real  estate,  will  be 
appointed.' 

It  sometimes  happens  that  several  administration  suits  are 
simultaneously  instituted  by  creditors  and  legatees,  and  that 
actions  at  law  are  also  brought  against  the  executor  by  parties 
having  claims  against  the  estate.  After  a  decree  has  been  made  in 
one  of  the  administration  suits,  all  the  suits  will  be  consolidated ; 
and  restraining  orders  will  be  issued,^  preventing  any  creditor 
from  proceeding  further  in  his  action  at  law.'"* 

When  the  assets  have  been  secured,  and  their  administration 
undertaken  by  the  court,  the  next  step  is  their  distribution.'' 

For  this  purpose  a  reference  is  directed  to  a  master,  by  whom 
an  account  of  the  personal  estate,  the  testamentary  expenses, 
and  the  legacies  is  taken,  and  before  whom  the  debts  must  be 
proved.  A  time  is  fixed  by  advertisement,  within  which  all 
claims  must  be  presented,  upon  the  expiration  of  which  the 
master  reports  the  claims  which  have  been  established,  and  the 
court,  by  its  decree  on  further  directions,  authorizes  a  distribu- 
tion of  the  fund  among  them,  and  protects  the  personal  repre- 
sentative from  any  future  claim. "^ 

oin.  Equitable  Assets  ;  doctrine  of  comparatively  little 
importance. 

As  under  the  equitable  remedy  of  partnership  bills,  certain 
equitable  doctrines  were  considered  because  their  application 
was  most  frequent  in  cases  of  that  kind;  so,  in  treating  of  the 
subject  of  administration  suits,  it  will  be  proper  to  notice  one 
or  two  doctrines  originally  peculiar  to  the  Court  of  Chancery, 
which  are,  in  such  suits,  most  frequently  invoked.  These  are 
the  doctrines  of  Equitable  Assets,  of  Performance,  and  of  Satis- 
faction. 

The  doctrine  of  Equitable  Assets  is  one  which  has  never  been 
extensively  applied  in  the  ITiited  States,  and  has  lost  its  im- 

1  Harmon    r.    Wagener,    ^^r^   S.    C.  <  Adams's  Doct.  Eq.  260. 

487;  and  the  rule  as  to  a  return  of  5  IJ.  262.  The  above  brief  state- 
rs wMa  bona  has  no  application  to  this  ment  of  the  course  of  an  administra- 
class.  tion   suit   is   principally   taken   from 

2  It  is  not  now  necessary  to  file  an  Adams.  Reference  may  also  be  had 
injunction  bill;  an  order  may  be  ob-  to  Williams  on  Executors,  2005  (7th 
tained  in  the  administration  suit.  Eng.  ed.). 

3  See  Rhodes  v.  Arnsinck,  38  Md. 
345. 

47 


738      creditors'    bills    and    administration    suits.      [I'ART  III. 

portance  in  England  in  consequence  of  the  act  of  1870/  by 
which  it  is  provided  that  simple  contract  and  specialty  creditors 
are,  in  future,  payable  pari  passu,  out  of  both  legal  and  equitable 
assets. 

But  it  is,  perhaps,  necessary  to  say  a  few  words  upon  the 
subject  of  equitable  assets,  not  only  because  in  some  states  the 
doctrine  may  be,  occasionally,  of  practical  importance,  but  also 
because  it  furnishes  an  illustration  of  the  effect  which  the  influ- 
ence of  equitable  principles  has  had  upon  general  jurisprudence 
both  in  England  and  in  this  country. 

532.  Origin  of  the  doctrine. 

In  England  the  real,  as  well  as  the  personal,  property  of  a 
decedent  was  originally  liable  for  the  payment  of  his  debts. 
But  under  the  influence  of  the  Feudal  system  (one  of  the  main 
objects  of  which  was  to  transmit  real  estate  in  an  unimpairetl 
condition  from  the  ancestor  to  the  heir),  the  rule  grew  up  that 
lands  in  the  hands  of  the  heir  were  not  bound  for  the  debts  of 
the  ancestor,  unless  there  was  some  deed  or  writing  under  seal 
(called  a  s])ecial  contract  or  specialty)  by  which  the  heir,  as 
well  as  the  ancestor,  was  in  express  terms  charged  or  bound  with 
the  payment  of  the  debt.     In  such  a  case  the  heir  was  liable, 
on  the  decease  of  his  ancestor,  to  })ay  the  debt  or  fulfil  the  con- 
tract, to  the  value  of  the  land  which  had  descended  to  him  from 
his  ancestor,  but  not  further,  and  the  lands  so  descended  were 
termed  assets  by  descent,  from  the  French  word  assez  (enough), 
because  the  heir  was  bound  only  so  far  as  he  had  lands  descended 
to  him  enough  or  sufficient  to  answer  the  debt  or  contract  of  his 
ancestor.-    Moreover,  if  the  heir  was  not  expressly  named  in  the 
obligation,  the  lands  in  his  hands  were  not  bound;  and  after  the 
power  of  testamentary  alienation  of  real  estate  was  conferred 
by  statute,  a  debtor  who  had  bound  his  heir  by  a  specialty  be- 
came enabled  to  defeat  his  creditor  by  devising  his  estate  to  some 
other  person  than  his  heir,  and  in  this  case  neither  the  heir  nor 
the  devisee  was  under  any  liability  to  the  creditors.    If,  however, 
the  ancestor,  impelled  by  a  sense  of  justice,  devised  the  real 
estate  to  trustees  for  the  payment  of  debts,  or,  what  was  the  same 
thing,  charged  it  with  the  payment  of  debts,  the  real  estate  then 
became  trust  property,  and  as  such  fell  under  the  administration 

1  52  and  53  Vict.,  c.  46.  whence     the     above     statement     is 

-  See  Williams  on  Real  Prop.  75,       taken. 


CH.  VI.]     creditors'  bills  and  administration  suits.       739 

of  the  Court  of  Chancery.  Now,  it  is  one  of  the  nuixinis  of  this 
court  that  ''eciuahty  is  equity  ";  and  hence,  when  the  real  estate 
of  a  decedent  came  to  be  appHed  to  the  payment  of  his  debts  un- 
der the  supervision  of  a  chancellor,  not  only  were  the  simple 
contract  debts  held  entitled  to  be  paid  out  of  the  fund,  but  they 
were  placed  upon  exactly  the  same  footing  as  debts  by  specialty, 
in  other  words,  all  the  debts  were  payable  pari  passu. 

By  various  statutes  the  injustice  to  creditors,  which  so  long 
existed  in  the  English  law,  was  abolished,  and  the  land  of  every 
debtor,  which  was  not  by  his  will  charged  with,  or  devised  sub- 
ject to  the  payment  of  his  debts,  was  made  assets  for  the  pay- 
ment of  debts,  reserving,  however,  to  creditors  by  specialty, 
in  which  the  heir  was  bound,  the  same  priority  which  they 
originally  possessed.  It  will  be  observed,  however,  that  land 
expressly  charged  with  or  devised  subject  to  the  payment  of 
debts  was  exempted  from  the  operation  of  these  statutes,  and 
therefore  still  fell  under  the  equitable  maxim,  already  statetl, 
that  equality  is  equity.  Hence  there  arose  two  classes  of  assets 
— first,  legal  assets,  or  those*  which  by  law  (either  common  law 
or  statute)  were  liable  to  the  payment  of  debts,  and  in  these  the 
priority  of  specialty  debts  was  preserved ;  and,  second,  equitable 
assets,  or  those  which,  being  administered  solely  in  the  Court 
of  Chancery  were  applicable  to  the  payment  of  all  debts  of  what- 
ever description  pari  passu.  This  distinction  has  been  (as  al- 
ready stated)  finally  abolished  by  the  statute  of  1870.^ 

533.  jSilk  V.  Prime, 

Before  the  passage  of  the  Statute  of  1870,  the  doctrine  of 
ecjuitable  assets  occupied  a  very  considerabk;  place  in  the  at- 
tention of  English  chancellors,  and  the  cases  by  which  lh(>  doc- 
trine was  illustrated  and  explained  are  quite  numerous.  In 
the  present  condition  of  the  law,  it  is  conceived  that  it  will  be 
sufficient  to  notice  two  of  them  only.  In  Silk  v.  Prime  ^  (one 
of  a  few  judgments  of  Lord  Camden,  as  chancellor,  which  have 
come  down  to  us  well  reported)  the  testator,  Christoj)her  Thom- 
son, directed  the  defendants.  Prime  and  Moxon  (whom  he  after- 
wards constituted  his  executors),  to  sell  his  real  estate  or  such 
parts  thereof  as  should,  with  his  personal  estate,  be  sufficient 

»  A  sketch  of  the  doctrine  of  equi-  2  1  Bro.  C.  C.  138,  n.;  2  Load.  Cos. 

table  atssets  will  be  found  in  Benson       Eq.  Ill  (1th  Eng.  ed.). 
V.  Le  Roy,  6  Johns.  Ch.  651. 


740      creditors'    bills   and   administration   suits,      [part  III. 

to  pay  all  his  just  debts,  and  to  apply  the  money  arising  there- 
from, together  with  the  money  arising  from  his  personal  estate, 
for  the  payment  of  all  his  just  debts.  It  was  argued  that  as  the 
testator  had  united  both  funds  together  in  the  hands  of  his  trus- 
tees and  executors,  both  must  be  one  consolidated  fund  to  follow 
one  course  of  administration;  but  the  Lord  Chancellor  said  "the 
.'nswer  is,  that  in  all  cases  where  the  trustee  and  executor  is  one 
person  the  funds  are  consolidated  in  the  same  manner,  for  out  of 
both  he  is  to  pay  all  his  debts;  but  the  course  of  administration 
is  different,  and  by  this  very  method  it  is  that  the  court  is  enabled 
to  pay  all  the  debts  without  distinction,  as  far  as  the  assets  will 
go,  and  by  marshalling  both  kinds  of  assets,  makes  them  amica- 
bly combine  to  answer  the  full  intention  of  the  testator." 

534.  Cook  V.  Greiison. 

In  a  more  modern  case  the  doctrine  of  equitable  assets  was 
thoroughly  considered  by  Vice-Chancellor  Kindersley,  and  his 
opinion  has  been  justly  regarded  as  a  most  clear  and  learned 
explanation  of  the  difference  betwe^en  the  two  kinds  of  assets.^ 
"Ihe  general  proposition,"  said  that  learned  judge,  "is  clear 
enough  that,  when  assets  are  made  available  in  a  court  of  law, 
they  are  legal  assets;  and  when  they  can  only  be  made  availal  le 
through  a  court  of  ecjuity,  they  are  equitable  assets.  This  pro])- 
osition  does  not,  however,  refer  to  the  question  whether  the 
assets  can  be  recovered  by  the  executor  in  a  court  of  law  or  in 
a  court  of  ec^uity.  The  distinction  refers  to  the  remedies  of  the 
creditor,  and  not  to  the  nature  of  the  'property.  The  question  is 
not  whether  the  testator's  interest  was  legal  or  equital)le,  l)iit 
whether  a  creditor  of  the  testator  seeking  to  get  paid  out  of  such 
assets  can  obtain  payment  thereout  from  a  court  of  law,  or  can 
only  obtain  it  through  a  court  of  eciuity ; "  and  the  Vice  Chancellor 
then  went  on  to  say  that  legal  assets  were  such  as  the  executor 
would  have  a  right  to  recover,  merely  virtvtc  officii,  i.  e.,  which 
hv  would  have  had  a  riglit  to  recover  if  the  testator  had  merely 
appointed  him  executor,  without  saying  anything  about  his 
property  or  the  application  thereof.  Other  assets  are,  of  course, 
equitable  assets. 

It  has  be(>n  already  observed  that  the  doctrine  of  equitable 
assets  is  of  little  or  no  importance  in  this  country  as  a  head  of 
chancery  jurisprudence,   owing  to  the   fact  that  it  has  been 

1  Cook  V.  Gregson,  3  Drew.  549. 


CH.  VI.]     creditors'   bills  and  administration  suits.      741 

adopted  and  incorporated  into  the  statute  law  of  most  of  the 
states;  in  other  wordi^,  that  the  debts  of  decedents  are  generally 
paid  pari  passu,  subject  to  some  few  preferences  which  have 
been  introduced  by  statute,  and  which  vary  in  different  states. 
It  has,  therefore,  been  thought  sufficient  to  give  a  very  general 
explanation  of  the  doctrine;  and  to  refer  to  the  two  leading  cases 
cited  above. ^  It  may  be  added  that  the  right  in  equity  to  en- 
force payment  of  a  debt  out  of  assets  which  are,  for  any  reason, 
impressed  with  a  trust  for  its  payment,  is  one  which  is  fully 
recognized  by  the  Federal  courts.' 

The  assets  of  the  decedent  having  been  got  in,  they  are  ap- 
plied to  the  payment  of  the  debts  and  legacies.  The  order  in 
which  assets  are,  as  a  general  rule,  to  be  applied  to  the  payment 
of  debts,  has  been  attempted  to  be  explained  in  a  former  chapter.""* 
This  order,  however,  together  with  the  order  in  which  debts  are 
to  be  paid,  is  the  subject  of  statutory  regulation  in  most  of  the 
states. 


535.  Doctrine  of  Perforiiiauce. 

In  applying  the  assets  to  the  payment  of  debts  and  legacies 
certain  equitable  doctrines  are  occasionally  invoked,  which  have 
not  been  hitherto  explained  and  which  should  therefore  be 
briefly  noticed.  These  doctrines  grow  out  of  the  general  equi- 
table principles,  that  equity  imputes  an  intention  to  fulfil  an  ob- 
ligation, and  that  equity  leans  against  double  portions;  and  they 
are  known  by  the  names  of  ''Performance  "  and  "Satisfaction." 

The  doctrine  of  Performance  is  applied  (first)  where  there  is 
a  covenant  to  purchase  an.d  settle  land,  and  a  purchase  is  made 
not  expressed  to  be  made  in  pursuance  of  such  covenant,  and  no 
express  settlement  is  made;  and  (second)  where  there  is  a  cov- 
enant to  leave  property,  and  the  covenantee  receives  a  share  un- 
der an  intestacy.^ 


1  A  few  of  the  cases  which  have  oc- 
curred in  the  United  States  upon  the 
general  subject  are  Benson  v.  Le  Roy, 
4  Johns.  Ch.  651;  Stagg  v.  Jackson, 
1  Comst.  206;  Torr's  Estate,  2  Rawle, 
250;  Walker's  Estate,  3  Id.  229;  Ag- 
new  V.  Fetterman,  4  Pa.  56;  Hoover 
V.  Hoover,  5  Id.  357;  Cadbury  v.  Du- 
val, 10  Id.  267;  Baldy  v.  Brady,  15 
Id.  103;  Sperry's  Estate,  1  Ashm. 
347;  Cornish  v.  Wilson,  6  Gill,  303; 


Backhouse  v.  Patton,  5  Pet.  160; 
Henderson  v.  Burton,  3  Ired.  Ch.  259; 
Helm  i>.  Darby's  Adm'rs,  3  Dana, 
185;  Cloudas's  Ex'r  v.  Adams,  4  Id. 
603;  Speed's  Ex'r  v.  Nelson's  Ex'r, 
8  B.  Mon.  499;  Bull  v.  Bull,  Id.  332. 

2  See  Borer  v.  Chapman,  119  U.  S. 
600;  Central  Trust  Co.  v.  Continen- 
tal Trust  Co.,  30  C.  C.  A.  234. 

3  Ante,  §§  346  et  seq. 

*  Snell's  Prin.  of  Eq.  193  (3d  ed.). 


742      CKEDITUI.S'    BILLS    AND    ADMINISTRATION    SUITS.      [PART  III. 

536.  Covenant  to  settle,  and  subsequent  purchase. 

.  Upon  tlio  first  branch  of  this  doctrine  the  leachng  authorities 
are  Lechniere  v.  The  Earl  of  Carhsle  ^  and  Wilcocks  v.  ^^'ilcocks.^ 
From  these  cases  and  from  subsec^uent  authorities  it  has  usually 
been  considered  that  the  following  propositions  may  be  de- 
duced : — 

First.  That  when  a  person  covenants  to  purchase  and  settle 
lands  of  a  certain  value,  and  afterw^ards  purchases  lands  of  an 
equal  or  greater  value  which  descend  to  his  heir,  it  will  be  deemed 
a  performance  of  the  covenant. 

Second.  Where  the  lands  purchased  are  of  less  value  than  the 
lands  covenanted  to  be  purchased  or  conveyed  and  settled,  they 
will  be  considered  as  purchased  in  part  performance  of  the 
covenant. 

Third.  Where  the  covenant  points  to  a  future  purchase  of  land, 
it  cannot  be  presumed  that  lands  of  which  the  covenantor  was 
seised  at  the  time  of  the  covenant,  descending  to  his  heir,  were 
intended  to  be  taken  in  part  performance  of  it. 

Fourth.  It  cannot  be  presumed  that  property  of  a  different 
nature  from  that  covenanted  to  be  purchased  by  the  covenantor, 
was  intended  as  a  performance. 

Fifth.  The  absence  of  the  required  consent  of  the  trustee  of 
the  settlement  will  not  rebut  the  presumption  of  performance, 
if  other  circumstances  are  favorable.^ 

537.  Covenant  to  pay,  and  subsequent  intestacy. 

Under  tlie  second  branch  (above  stated)  of  the  doctrine  of 
Performance,  the  cases  are  usually  those  in  which  a  husband 
covenants  to  pay  his  wife  a  sum  of  money,  and  then  dies  intes- 
tate, so  that  she  becomes  entitled  under  the  Statute  of  Distribu- 
tions. In  such  cases,  if  the  death  of  the  husband  occurs  at  or 
before  the  time  wh(;n  the  covenant  should  have  been  performed, 
the  share  of  the  widow  will  be  considered  as  a  performance  pro 
tanto  or  in  toto,  according  as  it  is  less  than  or  equal  to  the  sum 
covenanted  to  be  paid ;  •*  but  if  the  death  of  the  husband  is  after 


13  P.  Wms.  227;  Cas.  temp.  Tal-  188;  notes  to  Wilcocks  v.  Wilcocks, 

bot,  80.  2  Lead.  Cas.  Eq.  415. 

2  2   Vern.   558;    2  Lead.  Cas.  Eq.  <  Blandy  v.  Widmore,   1   P.  Wms. 
415.  324;  Goldsmid  v.  Goldsmid,  1  Swanst. 

3  See  Snell's  Principles  of  Equity,  211. 


CH.  VI.]    creditors'   bills  and  administration  suits.       743 

a  breach  of  the  covenant  has  occurred,  the  widow's  share  will  not 
be  considered  as  a  performance.^ 

Questions  of  this  kind  arise  principally  under  marriage  arti- 
cles in  England;  and  have  received  Httle,  if  any,  judicial  inter- 
pretation in  this  country. 

538.  Satisfaction  ;  of  debts  by  legacies. 

Where  one  person  is  under  some  legal  or  moral  obligation  to 
another,  and  under  those  circumstances  makes  a  gift  of  such  a 
nature  that  it  operates  as  an  exact  fulfilment  of  the  ol^ligation, 
there  arises  a  presumption  that  it  was  the  intention  of  the  donor 
to  discharge  the  obligation  by  making  the  gift;  in  other  words, 
the  gift  is  presumed  to  be  in  satisfaction  of  the  obligation,  and 
hence  this  presumption,  which  had  its  origin  in  Courts  of  Chan- 
cery, has  given  rise  to  what  is  known  in  equity  as  the  doctrine 
of  Satisfaction. 

This  doctrine  has  been  usually,  and  doubtless  justly,  supposed 
to  have  been  borrowed  from  the  civil  law;  but  it  is  one  which 
has  been  frequently  regarded  with  no  little  disfavor,  and  hence 
the  presumption  upon  which  it  is  founded  has  been  always  con- 
sidered liable  to  be  rebutted  by  slight  circumstances.  The  doc- 
trine being  founded  on  the  presumed  intention  of  the  donor, 
evidence  of  his  express  intention  is  admissible ;  and  presumptions 
are  also  drawn  from  surrounding  circumstances,  by  which  the 
supposed  intention  that  the  gift  should  operate  as  a  satisfaction, 
may  be  contradicted  or  controlled.^ 

The  cases  in  which  the  doctrine  of  satisfaction  has  been  ap- 
plied have  nearly  all  arisen  under  wills;  and  the  subject,  for  the 
purposes  of  convenient  consideration,  may  be  divided  into  the 
satisfaction  of  debts  by  legacies;  of  legacies  by  subseciuent 
legacies;  of  legacies  by  portions;  and  of  portions  by  legacies.^ 

And,  first,  of  the  satisfaction  of  debts  by  legacies.  It  is  a 
general  rule,  both  in  England  and  in  this  country,  that  a  legacy 
given  by  a  debtor  to  his  creditor,  which  is  equal  to  or  greater 
in  amount  than  the  debt,  shall  be  presumed  to  he  intended  as  a 
satisfaction  of  the  debt;  but  it  must  be  not  only  eciual  in  amount, 
but  equally  beneficial  and  of  the  same  nature  exactly.'*    It  will 

1  Oliver  v.  Brickland,  cited  in  .3  3  gee  Snell's  Equity,  194,  whence 
Atk.  420.                                                        the  division  in  the  text  i.s  taken. 

2  Stocks  V.  Cannon,  139  N.  C.  GO  ■»  2  Spence's  Eq.  605. 


744      creditors'    bills   and    administration    suits,      [part  III. 


be  observed  that  this  statement  of  the  rule  both  indicates  the 
general  doctrine,  and  also  suggests  some  considerations  by  which 
its  application  may  be  controlled. 

Chancey's  case  and  Strong  i\  Williams  may  De  cited  as  au- 
thorities in  which  the  general  doctrine  is  admitted,  and  at  the 
same  time  several  of  its  qualifications  illustrated.^  In  the  former 
case  a  person  indebted  to  his  servant  for  wages,  in  the  sum  of 
£100,  gave  her  a  bond  for  that  sum,  and  afterwards  by  will 
gave  her  £500  for  her  long  and  faithful  services,  and  directed 
that  all  his  debts  and  legacies  should  be  paid ;  in  the  latter,  the 
testator  gave  a  bond  to  his  housekeeper  conditioned  for  the  pay- 
ment of  $333  within  six  months  after  his  decease,  and  also  a 
written  promise  to  pay  her  $20  aimually;  and  he  afterwards  in 
his  will  bequeathed  her  a  pecuniary  legacy  of  $300,  together 
with  furniture  and  other  chattels  valued  at  $745;  and  he  devised 
the  residue  of  his  estate  sui)ject  to  the  payment  of  debts  and 
legacies.  In  both  of  these  cases  the  general  doctrine  of  satisfac- 
tion was  recognized ;  '  l:»ut  in  both  its  application  was  refused ;  in 
Chancey's  case,  because  the  intention  to  satisfy  the  debt  by  the 
legacy  was  supposed  to  be  rel^utted  by  the  express  direction 
that  debts  and  legacies  should  be  paid;  and  in  Strong  v.  Wil- 
liams, not  only  for  the  reason  in  Chancey's  case,  but  also  because 
the  pecuniary  legacy  was  less  than  the  amount  of  the  debt,  and 
the  specific  legacy  was  of  a  different  nature.  From  these  and 
from  oth(M-  authorities,  it  will  be  observed  that  the  presumption 
of  satisfaction  will  only  arise  where  the  amount  of  the  legacy 
is  equal  to  or  greater  than  that  of  the  debt ;  and  where  its  nature 
is  the  same;  but  that  this  presumption  is  liable  to  be  rebutted 
by  any  circumstances,  to  be  gathered  from  the  will,  or  from 
other  sources,  showing  an  intention  on  the  part  of  the  testator 
that  a  satisfaction  should  not  take  place. 

Where  a  creditor  gives  a  legacy  to  a  debtor  there  is  no  inde- 
pendent presumption,  either  at  law  or  in  equity,  that  the  legacy 


1  Chancey's  Case,  1  P.  Wms.  408; 
2  Lead,  Cas.  Eq.  (4th  Eng.  ed.)  380; 
Strong  V.  Williams,  12  Mass.  391; 
American  note  to  Chancey's  Case,  2 
Lead  Cas.  Eq.  782  (4th  Am.  ed.). 
See,  also,  Wathen  v.  Smith,  4  Mad. 
325,  Clark  v.  Sewell,  3  Atk.  96; 
Dey  V.  Williams,  2  Dev.  &  Bat.  Eq. 
66;   Byrne   v.  Byrne,  3  S.  &  R.  .'>4, 


Van  Riper  v.  Van  Riper,  2  N.  J.  Eii. 
1;  Parker  v.  Coburn,  10  Allen,  82; 
Wesco's  Appeal,  52  Pa.  195;  Horner's 
Ex'r  V.  McGaughy,  62  Id.  189. 

2  In  Chancey's  Case,  while  Lord 
Chancellor  King  admitted  the  ex- 
istence of  the  doctrine,  and  declined 
to  overturn  it,  he  by  no  means  ap- 
proved of  it. 


CH.  VI.]     creditors'   bills  and  administration  suits.      745 

is  meant  as  a  forgiveness  of  the  debt ;  such  a  construction  must 
be  estabhshed  by  affirmative  proof.* 

539.  Of  legacies  by  legacies. 

The  question  of  the  satisfaction  of  a  legacy  by  a  legacy  may 
arise  either  when  the  second  legacy  is  given  by  a  different  instru- 
ment, or  when  both  legacies  are  given  by  the  same  instrument. 
The  rules  by  which  the  question  is  to  be  determined  in  cases 
where  the  two  legacies  are  given  by  different  instruments,  were 
stated  by  Mr.  Justice  Ashton  in  the  leading  case  of  Hooley  r. 
Hatton,  decided  in  1773,  to  be  (in  substance)  as  follows : — 

1.  Where  there  is  no  internal  evidence  furnished  by  the  in- 
struments themselves,  the  general  rules  of  law  must  be  referred 
to. 

2.  Where  the  same  specific  thing  is  given  twice,  it  can  take 
place  but  once. 

3.  Where  the  like  quantity  is  given  twice,  the  legatee  is  en- 
titled to  both. 

4.  When  the  second  legacy  is  of  a  less  amount,  the  legatee  will 
take  both, 

5.  When  the  second  legacy  is  of  a  larger  amount,  it  is  an  aug- 
mentation, and  the  legatee  will  take  both.^ 

Perhaps  a  still  more  accurate  and  philosophical  statement  of 
the  law  is  to  be  found  in  Hurst  v.  Beach, ^  where  ISir  John  Leach 
said  that  "where  a  testator  leaves  two  testamentary  instru- 
ments, and  in  both  has  given  a  legacy  simpliciter  ^  to  the  same 
person,  the  court,  considering  that  he  who  has  twice  given  must, 
prima  facie,  be  intended  to  mean  two  gifts,  awards  to  the  legatee 
both  legacies,  and  it  is  indifferent  whether  the  second  legacy  is 
of  the  same  amount,  or  less,  or  larger  than  the  first ;  ^  but  if  in 
such  two  instruments  the  legacies  are  not  given  simpliciter,  but 
the  motive  of  the  gift  is  expressed,  and  in  both  instruments  the 
same  motive  is  expressed,  and  the  same  sum  is  given,  the  court 
considers  these  two  coincidences  as  raising  a  presumption  that 
the  testator  did  not  by  the  second  instrument  mean  a  second 
gift,  but  meant  only  a  repetition  of  the  former  gift;  the  court 

1  Story's  Eq.  Jurisp.   §  1123;  Am.  3  5  Madd.  351-358. 

note  to  Chancey's  Case,  2  Lead.  Cas.  *  That  is,  with  no  expression  of  the 

Eq.  828  (4th  Am.  ed.).  motive  of  the  gift. 

2  Hooley  v.  Hatton,  1  Bro.  C.  C.  &  Dickinson  v.  Overton,  57  N.  J. 
390,  n.;  2  Lead.  Cas.  Eq.  346  (4th  Eq.  26. 

Eng.  ed.). 


74(3    crp:i)itohs"  hills  and  .vDAiLXiyTHATioN  SUITS,     [part  hi. 

raises  this  presuniptioii  only  where  the  double  coincidence  occurs 
of  the  same  motive  and  the  same  sum  in  both  instruments;  it 
will  not  raise  it,  if  in  either  instrument  there  be  no  motive,  or  a 
different  motive  expressed,  although  the  sums  be  the  same;  nor 
will  it  raise  it  if  the  same  motive  be  expressed  in  both  instru- 
ments, and  the  sums  be  different."  The  rules  upon  the  subject 
as  thus  stated  have  been  expressly  approved  in  a  modern  case 
by  Sir  James  Bacon,  V.  C,  whose  judgment  was  subsetiueiitly 
affirmed  i^y  the  Court  of  Appeals.^ 

On  the  other  hand,  where  legacies  of  quantity  in  the  same 
instrument  are  given  to  the  same  person  simpliciter,  and  are  of 
(Hjual  amount,  one  only  will  be  good;  nor  will  small  differences, 
in  the  way  in  which  the  gifts  are  conferred,  afford  internal  evi- 
dence that  the  testator  intended  that  they  should  be  cumu- 
lative. Thus,  in  Greenwood  v.  Greenwood,  the  testatrix  gave 
"to  her  niece,  Mary  Cook,  the  wife  of  John  Cook,  £500,"  and 
afterwards,  in  the  same  will,  amongst  many  other  legacies,  "to 
her  cousin,  Mary  Cook,  £500  for  her  own  use  and  disposal,  not- 
withstanding her  coverture."  It  was  held  that  Mary  Cook  was 
entitled  to  but  one  legacy  of  £500,  and  that  the  same  was  to 
her  separate  use." 

Where,  however,  the  legacies  given  by  the  same  instrument 
are  of  unequal  amount,  th(^y  will  be  considered  cumulative.^ 

The  general  principles  stated  above  have  been  approved  in 
New  York  by  Chancellor  Kent ;  '^  and  in  other  states  of  the 
Union  in  several  decisions.^ 

540.  Of  legacies  by  portions  ;  of  portions  by  legacies. 

As  to  the  satisfaction  of  legacies  by  portions,  or  portions  by 
legacies,  the  general  doctrine  is  that  there  is  a  presumption 
ugainst  double  portions  when(>ver  the  relation  between  the  ])ar- 
ties  is  that  of  parent  and  child,  or  wherever  the  donor  stands  in 
loco  parentis  towards  the  tlonee;  but  that  no  such  presumjjiion 
exists  when  the  parties  are  mere  strangers.  The  leading  au- 
thority upon  this  subject  is  Ex  parte  Pye,  decided  by  Lord  Eldon 

1  Wilson  V.  O'Leary,  L.  R.  12  Eq.  •»  Then  Chief  Justice;  see  Dewitt  v. 
i>2ry,  7  Ch.  448.  Yates,  10  Johns.  156. 

2  Greenwood  v.  Greenwood,  1  Bro.  s  Jones  v.  Crevehng's  Ex'rs,  4  Ilar- 
C.  C.  :>1,  n.;  Hnell's  Principles  of  rison,  127;  Crevehng's  Ex'rs  r.  Jones, 
Equity,  198.  1  Zab.  573;  Minor  v.  Ferris,  22  Conn. 

3  Curry  v.  Pile,  2  Bro.  C.  C.  225;  371;  Dickinson  v.  Overton,  57  N.  J. 
Snell's  Prin.  of  Eq.  198.  Eq.  20. 


CH.  VI.]     creditors'   bills  and  administration  suits.       /47 

in  1811,  where  the  general  presumption  against  double  portions 
was  recognized,  and  the  exception  in  the  case  of  strangers  ap- 
plied.^ The  general  rule  there  laid  tlown,  as  well  as  the  excep- 
tion upon  which  the  case  was  decided,  has  since  been  recognized 
Ijoth  in  England  and  in  this  country,^ 

It  has  been  thought  proper  to  notice  the  general  doctrines  of 
performance  and  satisfaction  in  connection  with  the  subject  of 
administration  suits,  and  suits  by  legatees,  because  such  ques- 
tions most  frequently  arise  in  bills  of  this  kind.  The  statement 
of  these  doctrines  has  necessarily  been  an  exceedingly  brief  one; 
for  a  more  elaborate  examination  of  the  authorities  would  be 
out  of  place  in  a  general  treatise  upon  the  Principles  of  Equity, 
and  would  more  properly  be  found  in  a  treatise  upon  Wills. 

^Ex   parte   Pye,    18   Ves.    140;    2      Lead.  Cas.  Eq.  782  (4th  Am.  ed.). 
Lead.  Cas.  Eq.  365  (4th  Eng.  ed.).  See,  also,  In  re  Lacon  (Lacon  v.  La- 

2  See   notes   to   Ex   parte   Pye,    2      con)  [1891],  2  Ch,  482. 


748 


IMAMS.    IDIOTS    AND    LUNATICS. 


[part  III. 


CHAPTER  VII. 


infants,  idiots  and  lunatics. 


o41.  Protection  afforded  to  the  per- 
sons and  estates  of  infants  at 
common  law,  and  by  statute. 

542.  Necessity  for,  and  origin  of  the 

jurisdiction  of  the  chancellor. 

543.  Infant  is  made  a  ward  of  court. 

544.  To  be  made  a  ward  of  court  the 

infant  must  have  property. 

545.  Proceedings  may  be  by  petition 

as  well  as  by  bill. 

546.  Appointment    and    removal    of 

guardians;  custody  of  infants. 

547.  Guardianship    a    father's    duty, 

not  a  privilege. 


548. 
549. 
550. 
551. 


552. 
553. 

554. 
555. 


Education  of  the  ward. 

Management  of  his  estate. 

Marriage  of  the  ward. 

Nature  and  origin  of  the  juris- 
diction of  the  chancellor  over 
lunatics  and  idiots. 

Statute  of  Edward  II. 

Subject  generally  regulated  by 
statute  in  the  United  States. 

Method  of  procedure  in  lunacy. 

Appointment  and  powers  of 
committee. 


541.  Protection  afforded  to  the  persons  and  estates  of  in- 
fants at  coninion-law,  and  by  statute. 

It  is  essential  to  every  well-ordered  social  system  that  there 
should  exist  some  judicial  authority  by  which  protection  may  be 
afforded  to  those  who  cannot  protect  themselves;  in  other  words, 
that  there  should  l)e  some  tribunal  whose  duty  it  is  to  supervise 
the  care  of  the  persons  and  estates  of  infants,  idiots,  and  lunatics. 

In  the  case  of  infancy,  this  result  was  partially  attained  at 
conmion  law  by  the  guardianships  of  different  kinds  which  ex- 
isted under  that  system  of  jurisprudence,  and  to  which  the  care 
of  the  infant's  j^erson  and  the  management  of  his  estate  were 
intrusted;  while  in  case  of  a  breach  of  the  guardian's  duty,  either 
by  wasting  the  estate  of  the  ward,  or  by  cruelty  to  his  person, 
reilress  was  afforded  by  proceedings  in  the  criminal  courts,  or  by 
an  action  of  account  at  law,  according  to  the  nature  of  the  case. 
The  writ  of  habeas  corpus,  moreover,  was  available  for  the  pur- 
pose of  rescuing  the  ward  from  illegal  custody,  and  restoring  him 
to  his  proper  guardian.^ 


1  See  Massee  v.  Snead,  29  Ga.  51. 


CH.  VII.]  INFANTS,    IDIOTS    AND    LUNATICS.  749 

Additional  protection  to  the  persons  and  estates  of  infants 
was  also  afforded  in  England  by  the  provisions  of  the  statute 
of  Charles  11.,  by  which  the  father  of  an  unmarried  infant  was 
cnabletl  to  appoint  a  guardian  by  deed  or  will,  the  appointment 
being  good  against  all  persons  claiming  as  guardians  in  socage  or 
otherwise.^  Similar  statutes  exist  in  nearly  all^  or  perhaps  all, 
of  the  United  States;  and,  moreover,  in  most  of  the  states  of  the 
I'nion,  the  custody  of  the  person  of  the  minor  and  the  manage- 
nu>nt  of  his  estate,  and  all  matters  appertaining  to  the  appoint- 
ment, removal,  or  discharge  of  guardians,  and  the  settlement  of 
their  accounts,  are  intrusted  by  statute  to  Orphans'  Courts, 
Surrogates'  Courts,  Court  of  Probate,  or  other  similar  tribunals 
which  have  been  constituted  for  the  protection  and  administra- 
tion of  the  estates  of  decedents. 

542.  Necessity  for,  and  origin  of  the  jurisdiction  of  the 
chancellor. 

Notwithstanding  these  common-law  and  statutory  provisions 
there  still  existed  in  England  a  necessity  for  the  interference  of 
some  other  tribunal;  for  many  cases  necessarily  arose  in  which 
a  sufficient  control  over  the  guardian  or  a  pro])er  care  of  the 
ward's  estate,  could  not  be  secured  in  the  common-law  courts; 
nor  could  those  courts  possibly  exercise  a  continuous  supervision 
over  the  maintenance  and  education  of  the  minor,  and  over  the 
conduct  of  the  guardian.  Hence,  for  these  purposes,  there  has 
been  considered  to  exist  in  England  a  prerogative  in  the  Crown, 
as  parens  patrice,  to  be  exercised  by  the  Court  of  Chancery,  for 
the  protection  of  any  infant  residing  temporarily  or  permanently 
within  its  jurisdiction.  And  in  the  United  States,  also,  although 
owing  to  the  existence  of  special  tribunals  the  occasions  for  the 
exercise  of  this  head  of  chancery  jurisdiction  are  not  nearly  so 
fre(iuent  as  in  England,  cases  still  arise  in  which  equitable  inter- 
position is  necessary ;  -  and  not  only  has  it  been  held  that  the 
power  to  protect  the  persons  and  estates  of  minors  is  embraced 
in  (>very  general  legislative  or  constitutional  grant  of  chancery 
jjowers,^  but  it  has  also  been  decided  that  wherever  a  Court  of 

1  12  Car.  II.,  c.  24,  §  8.  482;  Am.  note  to  Eyre  v.  Countess  of 

2  Aymar  v.  Roff,  'S  Johns.  Ch.  40;  Shaftesbury,  2  Lead.  Cas.  Eq.  1517 
Cowls  V.  Cowls,  3  Oilman,  435;  Rich-       (4th  Am.  ed.). 

ards  V.  East  Tenn.  Ry.  Co.,  106  Ga.  3  McCord   v.  Ochiltree,   8   Blatchf. 

614;  Matter  of  Knowack,  158  N.  Y.       15;  Maguire  v.  Maguire,  7  Dana,  181. 


750 


INFANTS,    IDIOTS    AND    LUNATICS. 


[part  III. 


Chancery  of  general  jurisdiction  exists,  testamentary  and  statu- 
tory guardians  are  as  much  under  its  superintendence  and  con- 
trol, as  guardians  in  socage  at  common  lavv.^ 

A\'hile,  therefore,  it  would  be  out  of  place  to  enter  into  an 
elaborate  discussion  upon  the  relation  of  guardian  and  ward, 
and  upon  the  rights  and  duties  to  which  that  relation  gives  ris(\ 
it  will,  nevertheless,  be  proper  to  state  briefly  the  nature  of  the 
jurisdiction  of  chancery  upon  this  subject  and  the  manner  in 
which  the  court  acts  in  thus  attempting  to  remedy  the  deficien- 
cies of  the  common  law. 

543.  Infant  is  made  a  ward  of  court. 

The  general  theory  upon  which  chancery  assumes  jurisdiction 
over  the  persons  and  estates  of  minors  is  that,  by  proper  pro- 
ceedings, the  infant  has  been  constituted  a  ward  of  court.^  Al- 
most every  court  has  the  authority  to  protect  the  interests  of 
an  infant  party  by  appointing  a  guardian  ad  litem,  whose  duties 
will  relate  only  to  the  particular  subject  in  controversy;  but  the 
action  of  the  Court  of  Chancery  in  constituting  a  minor  a  ward  of 
court,  has  a  wider  scope,  and  extends  to  the  general  care  and 
protection  of  his  person  and  estate. 

544,  To  be  made  a  ward  of  court  the  infant  must  have 
property. 

Two  points  require,  perhaps,  to  be  noticed  in  the  first  instance. 
These  are  (first)  that  the  court  must,  it  is  said,  when  it  consti- 
tutes a  minor  a  ward  of  court,  have  some  property  of  the  infant; 
and  (second)  that  the  application  to  the  court  may  be  by  peti- 
tion as  well  as  by  bill.'"*  The  first  of  these  rules  was  thus  stated 
by  Lord  Eldon :  "  It  is  not  from  any  want  of  a  jurisdiction  that  it 
(the  court)  does  not  act  (where  it  has  no  property  of  an  infant), 
but  from  a  want  of  the  means  to  exercise  its  jurisdiction,  because 
the  court  cannot  take  upon  itself  the  maintenance  of  all  the 
children  in  the  kingdom.    It  can  exercise  this  jurisdiction  usc- 


"The  court  of  chancery,"  said  Mr. 
Jtistice  Nelson,  in  Williamson  v. 
Berry,  8  How.  .5.55,  "  possesses  an 
inherent  jurisdiction  which  extends 
to  the  care  of  the  persons  of  infants 
so  far  as  is  necessary  for  their  protec- 
tion and  education,  and  also  to  the 
care  of  their  property,  real  and  per- 
sonal, for  its  due  management  and 


preservation,  and  proper  application 
for  their  maintenance." 

1  Matter  of  Andrews,  1  Johns.  Ch. 
99;  Ex  parte  Crumb,  2  Id.  439; 
Ricardi  v.  Gabo;  ry,  115  Tenn. 
484. 

2  See  Williamson  v.  Berry,  S  How. 
531;  Ames  v.  Ames,  151  111.  280. 

3  See  notes  to  Eyre  o.  Countess  of 


CH.  VII.] 


INFANTS,    IDIOTS    AND    LUNATICS. 


r5i 


fully  and  practically  only  where  it  has  the  means  of  doing  so; 
that  is  to  say  by  its  having  the  means  of  applying  property  for 
the  use  and  maintenance  of  the  infant."  ^  In  practice,  however, 
the  operation  of  this  rule  would  seem  to  be  easily  evaded.  Thus, 
it  often  occurs  that  a  bill  is  filed  for  the  sole  purpose  of  making 
an  infant  a  ward  of  chancery ;  and  in  such  a  case  the  bill  always 
states  that  the  infant  has  property  whether  the  fact  be  so  or  not, 
and  that  the  bill  is  brought  against  the  person  in  whose  supposed 
power  or  custody  the  property  is.^  And  an  infant  may  be  con- 
stituted a  ward  of  court  although  all  the  property  and  the  actual 
<lomicile  of  infant  are  in  a  foreign  jurisdiction,  and  the  infant 
is  only  temporarily  within  the  jurisdiction  of  the  court.^ 

In  Cowls  V.  Cowls  '^  the  jurisdiction  of  the  court  was  made 
available  in  spite  of  the  want  of  property,  through  the  medium 
of  an  order  requiring  the  father  to  'pa}'  a  small  sum  annually 
for  the  maintenance  of  the  infants;  while  the  language  of  some 
of  the  decisions  would  seem  to  place  the  authority  of  the  court, 
in  part  at  least,  upon  the  simple  theory  of  protecting  the  infant 
from  cruel  treatment,  or  from  an  abuse  of  parental  authority.^ 
The  necessity,  therefore,  for  the  existence  of  property  as  a  pre- 
requisite to  the  exercise  of  the  jurisdiction  of  the  court,  would 
seem  to  be  more  of  a  legal  fiction  than  a  reality ;  ^  and  the  idea 
would  now  seem  to  be  wholly  explotled.' 

545.  Proceedings  may  be  by  petition  as  well  as  by  bill. 

In  the  second  place,  as  to  the  manner  in  which  a  minor  may 
be  constitut(>d  a  ward  of  court,  it  is  not  necessary  that  there 
should  be  any  suit  actually  instituted  or  bill  filed;  the  object 


Fhaftesbury,   2   Lead.   Cas.   Eq.   645 
^4th  Eng.  ed.). 

1  Wellesley  r.  The  Duke  of  B(<au- 
fort,  2  Russ.  21 ;  s.  c,  2  Bligh  (n.  s.), 
128. 

2  .Johnstone  v.  Beat  tie,  10  CI.  &  Fin. 
42;  Story's  Eq.  Jurisp.  §  1851. 

3  Id. 

*  3  Oilman,  435. 

5  Maguire  v.  Maguire,  7  Dana,  181; 
Am.  note  to  Eyre  v.  Countess  of 
Shaftesbury,  3  Lead.  Caa.  Eq.  272 
(3d  Am.  ed.).  In  Huke  r.  Huke,  44 
Mo.  App.  308,  it  was  said  that  a  minor 
child  has  no  right  in  equity  against 


its  father  to  compel   him   to  main- 
tain or  educate  it  during  minority. 

6  The  authority  of  the  Court  of 
Chancery  in  England  to  make  orders 
touching  the  custody  of  infants  un- 
der seven  years  of  age  is  much  en- 
larged by  Stat.  2  and  3  Vict.,  c.  54, 
§  1.  See  Warde  v.  Warde,  2  Phillips, 
78();  note  to  Eyre  v.  Counte.ss  of 
Shaftesbury,  2  Lead.  Cas.  Eq.  690 
(4th  Eng.  ed.). 

7  See  In  re  McGrath  [1892],  2  Ch. 
496,  and  the  remarks  of  North,  J., 
on  p.  511. 


752 


INFANTS,    IDIOTS    AND    LLNATICS. 


[part  111. 


may  be  attaineil  by  petition;  and  ex  en  an  order  in  ehanibers  for 
the  maintenanee  of  an  infant,  out  of  the  income  of  a  legacy,  upon 
a  vSummons  taken  out  in  her  name  by  her  guanUan,  has  been  held, 
without  suit,  to  constitute  the  infant  a  ward  of  chancery.^ 

5i6.  Appoiiitnient  and  removal  of  ;?iiar(1ians  ;  custody  of 
infants. 

The  jurisdiction  of  the  Court  of  Chancery  may  be  exercised 
either  for  the  purpose  of  appointing  a  guardian  where  the  in- 
fant has  none,  or  for  the  purpose  of  settling  conflicting  claims 
to  the  guardianship,  or  for  the  purpose  of  removing  the  custody 
of  the  infant's  person  and  the  care  of  his  property'  from  the 
legal  guardian,  whc^ther  the  guardian  be  by  nature  (as  the 
father,  for  example)  or  by  virtue  of  some  statute;  or  for  the  pur- 
pose of  restoring  a  minor  to  the  custody  of  the  parent.' 

The  jurisdiction  of  the  Court  of  Chancer}-  to  appoint  a  guard- 
ian, and,  if  necessary  for  that  purpose,  to  interfere  between  a 
father  and  his  children,  is  undoubted;  and  has  been  settled  by 
tlie  highest  authority  in  England,  and  by  many  cases  in  this 
country .■''  Thus,  where  the  habits  and  mode  of  life  of  the  father, 
or  his  treatment  of  his  child,  are  such  as  to  affect  injuriousl}'  the 
child's  health  or  morals  or  to  endanger  his  property,  the  custody 
of  the  child  will  be  committed  to  a  person  to  act  as  guardian ; '' 
but  mere  insolvency  of  a  father  will  not  be  a  ground  for  taking 
his  children  from  him;  ^  and  the  court  has  refused  to  deprive  a 
father,  though  living  in  adultery,  of  the  custody  of  his  child, 
w^h{>re  he  did  not  lii-ing  the  child  in  contact  with  the  woman  with 
whom  he  was  so  living.^ 


1  //(  re  (iraham,  L.  R.  10  Eq.  530. 
See,  also,  2  Lead.  Cas.  Eq.  681,  682 
(4th  Ens.  «1.). 

-  Matter  of  Kuowack,  158  N.  Y. 
482. 

:*  Welkvsley  v.  The  Duke  of  Beau- 
fort, 2  Russ.  1;  2  BUgh  (n.  s.),  124; 
Wood  V.  Wood,  5  Paige  Ch.  596; 
In  the  Matter  of  WoUstonecraft,  4 
Johns.  Ch.  80;  Miner  v.  Miner,  11  111. 
43;  Maguire  v.  Maguire,  7  Dana,  181; 
Story's  Eq.  Juri.sp.  §  1341. 

^  Creiize  v.  Hunter,  2  Cox,  242; 
Shelley  v.  We-sthrooke,  Jac.  266,  n.; 
Anon.,  2  Sim.  (.\.  s.)  54;  De  Manne- 


ville  r.  De  Manneville,  10  Ves.  (i2; 
Warde  v.  Warde,  2  Phillips,  78Ci; 
Thomas  v.  Roberts,  3  De  G.  &  Sm. 
758;  Whitfield  r.  Hales,  12  Yes. 
492;  In  re  Waldron,  13  Johns.  4 IS; 
People  r.  Mercein,  8  Paige  Ch.  47; 
25  Wend.  64;  State  v.  Grigsby,  21 
Am.  L.  Reg.  (n.  s.)  805.  See  2 
Lead.  Cas.  E(i.  685,  692  (4th  Eng. 
ed.),  and  2  Id.  1506  (4th  Am.  ed.). 

5  Kilpatriek  r.  Kilpatrick,  Mac- 
phers.  143;  In  re  PTynn,  2  De  (!.  & 
Sm.  457;  2  Lead.  Cas.  Eq.  686  (4th 
Eng.  ed.). 

6  Ball    V.    Ball,    2   Sim.    35.      See. 


CH.  VII.] 


INFANTS,    IDIOTS   AND    LUNATICS. 


753 


As  in  the  case  of  a  father,  so  a  fortiori  in  the  case  of  a  testa- 
mentary guardian,  will  the  court  interfere  in  cases  of  improper 
conduct  or  character.'  But  it  seems  that,  both  in  the  case  of  a 
father  and  a  testamentary  guardian,  the  court  will  not  appoint 
another  guardian,  but  will  simply  appoint  a  person  to  act  as 
Ijuardian} 

547.  Guardianship  a  fatlier's  (hiiy  not  n  privilege. 

The  guardianship  of  his  children  is  not  a  privilege  of  the  fath(>r, 
but  it  is  a  dvtij  cast  upon  him  by  considerations  of  public  welfare. 
He  cannot,  therefore,  by  any  contract  relieve  himself  from  the 
responsibility  of  discharging  his  duty;  and  hence,  it  must  now 
be  considered  as  settled  (at  all  events  in  England)  that  contracts 
by  a  father  to  give  up  to  his  wife  the  custody  and  education  of 
th(nr  children,  are  contrar}^  to  public  policj^,  and  will  not  be  en- 
forced in  equity  against  the  husband;  and  this,  although  \\\v 
husband  may  have  been  guilty  of  adultery  and  of  cruelty  to  his 
wife.^  There  may,  however,  be  such  cases  of  gross  misconduct 
oil  the  part  of  the  father  as  will  unfit  him  for  the  custody  of  his 
'•hildren. 


548.  Education  of  the  ward, 

Supposing,  now,  that  the  court  has  assumed  the  care  of  the 
person  and  property  of  the  infant,  the  next  question  for  consid- 
eration is,  in  what  particulars  will  the  jurisdiction  of  the  court 
be  exercised?  There  are  usually  said  to  be  three,  viz.,  first,  the 
education  of  the  infant;  second,  the  management  of  the  estate; 
and  third,  the  marriage  of  the  ward. 

The  guardian  will  lie  allo^^■(  d  to  regulate  the  mode  and  select 
the  place  for  his  ward's  education,  and  the  obedience  of  tlie 
ward  will  be  enforced  by  the  court;"*  and  where  guardians  dif- 
fer as  to  the  mode  of  education,  the  court  will  decide. 


also.  Commonwealth  r.  Addicks,  5 
Binn.  520,  and  2  S.  &  R.  174;  State 
?'.  Baird,  21  N.  J.  Eq.  384. 

1  Duke  of  Beaufort  v.  Bcrty,  1  V. 
Wms.  704;  Smith  v.  Bate,  2  Diek. 
(j;Jl;  2  Lead.  Cas.  Eq.  692. 

2  Ex  parte  Mountfort,  15  Ves.  446; 
2  Lead.  Cas.  Eq.  685,  692,  693. 

3  2  Lead.  Cas.  Eq.  671  (4th  Eng. 
ed.). 

*  In  Tremain's  Case,  1  Strange,  168, 

48 


the  minor  went  to  Oxford  contrary  to 
the  orders  of  his  s'lardian,  who  would 
have  him  go  to  Cambridge,  and  the 
court  sent  a  messenger  to  carry  him 
from  Oxford  to  Cambridge;  and  upon 
the  minor's  return  to  Oxford,  "there 
went  another  messenger,  tarn  to 
carry  him  to  Canibridge,  qunm  to 
keep  him  there."  See,  also,  2  Lead. 
Cas.  Eq.  694,  notes  (4th  Eng.  cd.). 


754  INFANTS,    IDIOTS    AND    LUNATICS.  [PART  III. 

In  regard  to  matters  of  religious  belief  the  court  will  usually 
respect  the  creed  and  opinions  of  the  father,  and  even  in  Eng- 
land the  court  will  not  control  a  guardian  in  bringing  up  a  child 
in  a  faith  different  from  that  of  the  established  church,  if  it  be 
the  religion  of  the  father.^  Indeed,  the  rule  has  been  declared 
to  be  that  the  father  has  an  absolute  right  in  his  lifetime  to 
decide  what  religious  education  his  children  shall  receive;  and 
it  has  also  been  authoritatively  said  to  be  equally  clear  that,  after 
the  death  of  the  father,  those  who  have  the  guardianship  of  the 
child  are  bound  to  see  that  the  child  is  brought  up  in  the  religious 
faith  of  the  father.^  In  a  still  later  case,  the  absolute  right  of  the 
father  has  been  most  emphatically  recognized,  even  in  contra- 
vention of  an  ante-nuptial  agreement.''  The  subject  is,  however, 
in  the  discretion  of  the  court,  and  the  general  rule  may  be  modi- 
fied by  peculiar  circumstances.'*  The  welfare  of  the  chilch'en  is 
the  paramount  consideration;  and  the  conduct  of  a  living  father 
may  justify  the  court  in  depriving  him  of  their  custody  and  tlis- 
regarding  his  wishes  as  to  their  religious  education.^ 

In  general  the  court  will  not  allow  its  wards  to  be  taken  out 
of  its  jurisdiction;  but  this  rule  is  subject  to  exceptions  when 
the  health  of  the  ward  or  other  peculiar  circumstances  render 
it  necessary.*^ 

549.  Management  of  his  estate. 

As  to  the  management  of  the  estate  of  the  ward,  it  is,  of  course, 
directed  for  the  end  designed  by  the  testator  or  settlor  (if  any) 
from  whom  the  property  may  have  been  derived,  and  the  duties 
of  the  guardian  as  to  the  care  and  investment  of  the  estate  are 
regulated  very  much  by  the  general  rules  applicable  to  other 
trustees.  Questions  upon  this  subject,  generally,  have  respect 
to  the  proper  maintenance  of  the  ward,  and  the  sums  which  are 
to  be  appropriated  for  that  purpose.    Regard  must  be  had  to  the 

1  Talbot  V.  The  Earl  of  Shrews-  3  Jn  re  Violet  Nevin  [1891],  2  Ch. 
bury,  4  My.  &  (>.  672;  Hawksworth       299. 

r.  Hawksworth,  L.  R.  6  Ch.  539;  <  See  Stourton  f.  Stourton,  8  De  G. 
Austin  ?•.  .\ustin,  34  Beav.  257;  In  M.  &  G.  760;  Hawksworth  i'.  Hawks- 
re  Newberry,  L.  R.  1  Ch.  263.  worth,  L.  R.  6  Ch.  543,  544;  Andrews 

2  In  re  Scanlan,  Infants,  40  Ch.  D.  v.  Salt,  8  Id.  622.  In  re  McGrath 
207.     See   In   re  McGrath   [1892],   2  [1892],  2  Ch.  496 

Ch.   496,   where,   under   the   circum-  »  In  re  Newton  [1896],  1  Ch.  740. 

stances,  the  court  declined  to  inter-  «  2  Lead.  Cas.  Eq.  698  (4th  Eng. 

fere  after  the  father's  death.  ed.). 


CH,  VII.] 


INFANTS,    IDIOTS    AND    LUNATICS. 


755 


condition  and  prospects  of  the  ward,  and  to  his  rank  in  life;  and 
while  usually  the  income  only  (or  a  portion  thereof)  will  be  ap- 
plied to  his  education  and  maintenance,  the  rule  is  not  an  invari- 
able one,  and  in  some  instances  the  capital  has  been  allowed  to 
be  broken  in  upon.^ 

The  power  of  the  Court  of  Chancery  over  the  property  of  its 
ward  extends  only  to  the  personal  property,  and  the  income  of 
the  real  estate;  the  court  having  no  inherent  power  to  direct  a 
sale  of  the  real  estate  for  the  purposes  of  maintenance  or  educa- 
tion. That  is  a  power  which  rests  exclusively  with  the  legisla- 
ture.^ In  most  of  the  United  States,  however,  the  courts  which 
have  control  of  the  estates  of  minors  are  vested  with  authority 
to  order  a  sale  of  real  estate  when  it  is  necessary  and  proper, 
and  for  the  benefit  of  the  infant. 

The  court  may  order  personal  property  of  the  infant,  where 
it  is  for  his  benefit,  to  be  invested  in  land;  l)ut  the  order  au- 
thorizing such  investment  will  be  coupled  with  a  declaration 
that  the  land  shall  be  considered,  during  the  minority,  as  con- 
structively personal.^ 


550.  Marriage  of  the  ward. 

The  last  point  upon  which  the  court  exercises  its  jurisdiction 
over  wards  of  court  is  for  the  purpose  of  controlling  their  mar- 
riage. In  the  case  of  wards  of  the  court,  whether  male  or  female, 
even  when  they  have  parents  living,  or  guardians,  it  is  neces- 
sary to  apply  to  the  court  l)y  petition  for  leave  for  them  to  marry, 
which  will  only  be  granted  upon  its  appearing  that  the  marriage 
is  suitable,  and  the  settlement  proposed  is  proper;  and  the  court 
will  prevent,  as  far  as  it  can,  a  clandestine  marriage,  by  ordering 
that  the  ward  shall  not  be  married  without  the  leave  of  the  court, 
and  that  the  person  desirous  of  marr3dng  the  ward  shall  not  have 


1  In  the  Matter  of  Bostwick,  4 
Johns.  Ch.  101;  and  see  notes  to 
Eyre  v.  Countess  of  Shaftesbury,  2 
Lead.  Cas.  Eq.  1503,  1504,  1505. 
See,  also,  Pitts  v.  R.  I.  Hospital 
Trust  Co.,  21  R.  I.  544. 

2  Williamson  v.  Berry,  8  How.  405, 
531;  2  Lead.  Cas.  Eq.  1504  (4th  Am. 
ed.).  See,  also,  Rogers  v.  Dill,  6 
Hill,  415;  Rivers  v.  Durr,  46  Ala.  418; 
Kearney  v.  Vaughan,  50  Miss.  284; 
Faulktier  v.  Davis,   IS    Gratt.  615, 


Sec,  however,  Bulow  v.  Witte,  3  S.  C. 
(n.  s.)  308;  Matter  of  Salisbury,  3 
Johns.  Ch.  347;  Huger  v.  Huger,  3 
Doss.  18;  Hale  v.  Hale,  146  111.  227; 
(iorman  v.  Mullins,  172  Id.  353; 
Baldrige  v.  CofTey,  184  Id.  73; 
Richards  v.  East  Tenn.  Ry.  Co.,  106 
Ga.  614. 

3  Ashburton  v.  Ashburton,  6  Ves. 
6;  Ex  -parte  PhiUips,  19  Id.  123. 


756 


INFANTS,    IDIOTS    AND    LUNATICS. 


[part  hi. 


access  by  letter  or  otherwise.  A  person  marrying  a  ward  of  court, 
or  contriving  or  assisting  such  a  marriage,  without  the  leave  or 
the  court,  will  be  guilty  of  a  contempt  of  court,  and  will  be  pun- 
ished accordingly;  and  it  seems  that  ignorance  of  the  fact  that 
the  infant  is  a  ward  of  court,  although  it  may  be  used  in  mitiga- 
tion, will  not  acquit  the  party  of  the  contempt.^ 

The  guardianship  of  chancery  ov.  v  infants  extends  to  the 
age  of  twenty-one.  An  infant,  in  chancery,  is  not  entitled,  as 
of  course,  on  arriving  at  the  age  of  fourteen,  to  select  a  new 
guardian.'  In  the  case  of  a  female  ward,  however,  the  guardian- 
ship terminates  with  marriage.^ 

551.  Nature  and  origin  of  the  jurisdiction  of  the  chancel- 
lor over  lunatics  and  idiots. 

Having  considered  the  jurisdiction  of  the  chancellor  over  the 
persons  and  estates  of  infants,  the  next  subject  which  most 
naturally  demands  attention,  is  that  of  the  analogous  eciuitable 
relief  which  is  afforded  in  the  case  of  persons  non  compotes  men- 
tis ^  It  has  been  stated  in  a  former  part  of  this  treatise,^  that  the 
jurisdiction  of  the  English  Court  of  Chancery,  in  the  case  of 
lunatics  and  idiots,  was  peculiar  in  this  respect — viz.,  that  it  was 
not  exercised  in  a  regular  suit,  but  by  the  chancellor  personally, 
on  petition,  and  that  the  appeal  from  his  ortler  is  to  the  king  in 
council  and  not  to  the  House  of  Lords.  This  resulted  from  the 
fact  that  the  authority  of  the  chancellor  did  not  exist  by  virtue 
of  his  ofhce,  and  as  a  part  of  his  general,  extraordinary  jurisdic- 
tion, but  was  derived  by  special  authority  from  the  sovereign 
in  whom,  as  parens  patrice,  the  care  of  idiots  and  lunatics  was 
vested,  This  authority  of  the  king  not  only  existed  at  connnon 
law  but  was  also  increased  or  afl'ected  by  several  statutes  of  an 
early  date,  which  vested  in  him  the  profits  of  the  land  of  an  idiot, 
(hiring  the  idiot's  life,  as  a  beneficial  interest,  and  imposed  upon 


'  Sec  2  Lead.  Cas.  Eq.  703. 

2  In  re  William  Nicoll,  1  Johns. 
Ch.  2.5. 

3  Mendes  v.  Mendes,  1  Ves.  Sr.  00; 
Matter  of  Whitakcr,  4  Johns.  Ch. 
380. 

4  This  term  properly  includes  not 
only  lunatics,  but  persons  of  weak 
and  feeble  understanding.  Such  per- 
sons may  have  committees  appointed 


by  Courts  of  Chancery  to  take  charge 
of  their  persons  and  estates  by  a 
commission  m  the  nature  of  a  writ  de 
Ittnatico  inquirendo.  See  Matter  of 
Barker,  2  Johns.  Ch.  234,  where  the 
subject  is  examined  by  Chancellor 
Kent.  See,  also,  Gibson  v.  Jeyes,  6 
Ves.  273;  Ridgeway  v.  Darwin,  8  Id. 
00;  Ex  parte  Cranmer,  12  Id.  445. 
5  Introduction,  ante,  p.  47. 


CH.  VII.]  INFANTS,    IDIOTS    AXI)    LUNATICS,  757 

him  the  duty  of  keeping  the  lantls  and  tenements  of  lunatics 
without  waste. ^  In  the  case  of  a  lunatic,  therefore,  the  king  was 
a  mere  trustee. 

552.  Statute  of  Edward  II. 

Before  the  statute  de  prerogativa  regis,^  the  custody  of  the 
persons  and  lands  of  such  idiots  as  were  possessed  of  lands  was 
in  the  lord  of  the  fee,  and  in  case  the  itliot  had  no  land,  he  fell 
under  the  care  of  the  king,  as  the  general  custos  of  all  those  who 
had  no  other  guardian.  By  the  statute  just  mentioned,  the 
custody  of  the  persons  and  land  of  idiots  was  taken  from  the 
lord  and  entrusted  to  the  king,  to  whom  (as  already  stated)  a 
beneficial  interest  in  the  idiot's  land  was  given.  On  the  other 
hand  the  statute  of  17  Edw.  11.,  c.  10,  as  to  lunatics,  was  a  re- 
straining statute,  as  it  prescribed  the  duties  of  the  king,  and  con- 
stituted him  a  trustee. 

Before  and  since  these  statutes  the  king  has  exercised  his  con- 
trol over  the  persons  and  estates  of  idiots  and  lunatics  by  dele- 
gating his  authority,  by  sign-manual,  to  some  great  officer, 
usually  (though  not  necessarily)  the  holder  of  the  great  seal.^ 
The  effect  of  the  delegation  of  authority,  under  the  sign-manual, 
was  merely  to  give  the  chancellor  power  to  grant  the  custody 
of  the  lunatic;  but  after  the  Court  of  Chancery  became  well 
established,  successive  holders  of  the  great  seal  imported  into 
the  exercise  of  their  special  jurisdiction  under  the  sign-manual, 
all  the  powers  which  they  wiekled  as  chiefs  of  the  Court  of  Chan- 
cery. Hence,  after  the  custody  is  granted,  the  great  seal  acts  in 
matters  relative  to  the  lunatic,  not  under  the  sign-manual,  but 
by  virtue  of  its  general  power  as  keeper  of  the  king's  conscience.'* 

553.  Subject  generally  regulated  by  statute  in  the  Uuited 
States. 

In  a  few  of  the  United  States  the  care  of  the  persons  and 
estates  of  idiots  and  lunatics  is  entrusted  to  Courts  of  Chancery; '' 
but  even  where  this  is  the  case  the  jurisdiction  is  ordinarily  I'xer- 

1  Stats.  17  Edw.  II.,  c.  9;  Id.,  c.  10.  the  chancellor  by  virtue  of  his  gen- 

2  Stat.  17  Edw.  II.,  c.  9.  eral   powers,   and   before   any   grant 

3  See  Wigg  v.  Tyler,  2  Dickens,  553.  under  the  sign-manual,  and   so  ex- 
*  £x  parte  Grimstone,  Ambler,  707 ;  ercised  it  in  Ireland.     See  1   Camp- 

Ex  parte  Fitzgerald,   2  Sch.  &  Lef.       bell's  Lives  of  the  Chancellors,  14. 
438.      Lord   Campbell   thought   that  ^  Hee    Meurer's   Appeals,    119    Pa. 

the  jurisdiction  might  be  exercised  by       130. 


758  INFANTS,    IDIOTS   AND    LUNATICS.  [PART  III. 

cised  under  statutory  provisions,  by  which  the  court  is  pointed 
out  and  the  method  of  procedure  prescribed.  In  most  of  the 
States  of  the  Union,  however,  the  care  of  persons  non  compotes 
mentis  is  confined  to  special  tribunals,  and  is  not  made  a  part  of 
equitable  jurisdiction.  In  many  ca.ses,  however,  the  mode  of 
l^rocedure  has  been  borrowed  from  that  which  grew  up  under  the 
English  chancellors;  and  it  may,  therefore,  be  useful  to  give  a 
very  brief  outline  of  that  procedure. 

554.  Method  of  procedure  in  lunacy. 

The  jurisdiction  of  the  chancellor  was  exercised,  in  the  first 
place,  for  the  purpose  of  ascertaining  the  fact  of  lunacy;  and, 
second,  for  the  care  of  the  lunatic  and  the  management  of  his 
estate.  The  first  purpose  is  attained  by  issuing  a  commission 
under  the  great  seal  in  the  nature  of  a  writ  de  hmatico  inqvirendo; 
under  which  a  jury  is  empanelled  and  sworn,  the  alleged  lunatic 
and  witnesses  are  examined,  and  a  return  thereof  made  into  chan- 
cery. If  the  return  untruly  finds  the  party  a  lunatic,  it  may  be 
traversed  by  himself  or  by  any  one  claiming  under  a  contract 
with  him;  if  it  untruly  finds  him  of  sound  mind,  a  writ  of  melius 
inquirendum  may  be  issued  by  the  crown.  If  the  lunatic  subse- 
quently recovers,  the  commission  may  be  superseded;  but  for 
this  purpose  the  lunatic  must,  in  general,  be  personally  examined 
and  his  sanity  fully  established.^ 

555.  Appointment  and  powers  of  committee. 

If  the  party  is  found  a  lunatic  by  the  return  of  the  commis- 
sion, or  upon  a  trial  under  the  subsequent  traverse,  the  next 
duty  of  the  court  is  to  take  care  of  his  person  and  estate,  and 
this  is  done  by  the  appointment  of  a  committee.  A  committee 
may  also  be  appointed  pending  the  proceedings,  when  such  a 
course  shall  be  deemed  necessary  by  the  chancellor. 

The  powers  of  a  committee  are  exceedingly  limited.  He  is 
a  mere  custodian  of  the  property;  and  even  the  powers  con- 
ferred upon  him  by  statute  are  to  be  exercised  under  the  con- 
stant supervision  and  sanction  of  the  court.  A  due  allowance 
is  made  by  the  court  for  the  lunatic's  maintenance;  -  and  the  gen- 

1  A  commission  may  issue,  even  if  Eq.  502.     See,  also,  Beall  v.  Stokes, 

the  alleged  lunatic  is  a  non-resident,  95  Ga.  357. 

if  he  has  real  estate  within  the  juris-  2  See  Equitable  Trust  Co.  v.  Garis, 

diction.     In  re  Devausney,  52  X.  J.  190  Pa.  544. 


CH.  VII.]  INFANTS,    lUlOTft   AND    LUNATICS.  ToO 

eral  principle  upon  which  the  estate  is  managed  is  that  the  in- 
terest of  the  lunatic  alone  is  to  be  looked  to,  without  regard  to 
that  of  his  eventual  successors. 

The  powers  and  duties  of  the  coniniittee  of  a  lunatic,  and  the 
manner  in  which  the  estate  is  to  be  managed,  or  converted,  or 
applied  to  the  maintenance  of  the  lunatic  or  his  family,  are 
regulated  in  most  of  the  States  by  statutes,  into  the  details  of 
which  it  would  be  impossible  to  enter. 

It  may  be  said,  however,  that  the  ''leading  principle,  the 
paramount  consideration  is  the  interest  of  the  lunatic.  Consist- 
ently with  that  principle  it  is  settled  that  in  the  ordinary  course 
of  managing  a  lunatic's  estate,  the  court  pays  no  regard  to  the 
interests  or  expectations  of  those  who  may  come  after.  But  it 
is  equally  well  settled  that  in  matters  outside  the  ordinary  course 
of  management,  it  is  the  duty  of  the  court  so  far  as  may  be 
possible  not  to  alter  the  character  of  the  lunatic's  property  or 
to  interfere  with  any  rights  of  succession."  ^ 

Upon  the  death  of  the  lunatic  the  powers  of  the  committee 
cease;  and  his  duty  is  simply  to  account  and  hand  over  the  prop- 
erty to  the  heir  or  personal  representative  of  the  lunatic,  as  the 
case  may  be. 

^  In  re  Gist  [1904],  1  Ch.  411;  At-       torney-General  v.  Marquis  of  Ailes- 

bury,  12  A.  C.  688. 


760 


blSCOVEHY. 


[pari  ill. 


CHAPTER  VIII. 


DISCOVERY. 


556.  Defects  in  common  law  as  to 

discovery;  statutory  changes. 

557.  Origin    and    nature    of   bills    of 

discovery. 

558.  Subject    not    of    as    much    im- 

portance  as   formerly. 

559.  Discovery    must    be    in    aid    of 

legal  proceedings. 

560.  General    right    of    complainant 

in  bills  of  discovery. 

561.  Rules  for  protection  of  defend- 


ant; need  not  discover  his  own 
title,  nor  evidence  thereof. 

562.  Need  not  criminate  himself. 

56.'i.  Confidential  communications  as 
to  litigation. 

564.  State  secrets. 

565.  In  bills  of  discovery  courts  will 

go  on  and  afford  relic  f. 

566.  Production  of  documents. 

567.  Commissions    to    examine    wit- 

nesses abroad;  to  take  testi- 
mony de  bene  esse. 


556.  Defects  in  common  law  as  to  discovery  ;  statutory 
changes. 

In  a  common-law  action  the  plaintiff  was  obliged  to  make  out 
his  case  by  calling  third  parties  as  witnesses,  by  compelling  the 
production  of  such  documents  material  to  the  issue  as  were  in 
the  custody  or  under  the  control  of  third  parties,  and  by  pro- 
(hicing,  himself,  such  documents  as  were  in  his  own  possession, 
and  whose  execution  could  be  properly  proved.  No  means,  how- 
ever, existed  l)y  which  the  opposite  party  could  be  compelled  to 
testify  as  to  the  matters  in  dispute,  or  by  which  the  production 
of  documents  in  his  ])ossession  could  be  enforced.  In  modern 
times  this  rule  has  in  Ihigland  and  in  nearly  all  of  the  United 
States  been  altered  l)y  statute,  and  a  party  to  a  common-law 
action  can  iiow  ])ut  his  adversary  upon  the  witness-stand  with- 
out being  concluded  Ijy  his  testimony,  and  without  being  subject 
to  the  rule  which  forbids  leading  (juestions, — in  other  words,  he 
can  call  and  cross-examine  the  opposite  party;  and  he  can  compel 
the  protluction  of  books  and  papers  at  a  reasonable  period  Ix'fore 
the  trial  of  the  cause. 

657.  Origin  and  nature  of  bills  of  discovery. 

^^'hile  the  conmion-Iaw  rule  prevailed,  and  while  the  incon- 


CH.  VIII.]  DISCOVERY.  761 

venienco  consequent  thereon  existed,  a  different  rule  grew  up  in 
courts  of  equity.  It  was  part  of  the  machinery  of  the  Court  of 
Chancery  that  a  discovery  could  be  compelled;  in  other  words, 
the  defendant  in  a  bill  in  equity  was  obliged  to  answer  under 
oath  the  allegations  in  the  bill.^  The  production  of  documents 
could  also  be  enforced,  and  an  opportunity  for  their  inspection 
afforded.  The  right  of  discovery  was  in  fact  one  of  the  peculiar 
advantages  of  a  complainant  in  equity,  and  was  always  enjoyed 
by  him  in  every  case  in  which  he  was  entitled  to  come  into  chan- 
cery, either  for  the  purpose  of  asserting  an  equitable  title,  or 
setting  up  an  equitable  right,  or  applying  an  equitable  remedy.' 

The  jurisdiction  of  the  High  Court  of  Chancery  ])eing  based 
upon  matters  of  ''conscience,"  an  appeal  to  the  defendant's 
conscience  was  one  of  the  earliest  and  most  natural  modes  of 
equitable  relief. 

But  this  right  went  still  further.  Many  cases  existed  in  which 
the  plaintiff  had  a  legal  title  or  a  k^gal  right,  or  was  pursuing 
a  legal  remedy,  but  wherein  no  redress  could  be  actually  ob- 
tained, simply  because  the  plaintiff's  evidence  either  rested  in  the 
breast  of  the  defendant,  or  consisted,  in  whole  or  in  part,  of 
documents  in  the  defendant's  possession.  Hence,  there  was  a 
failure  of  justice  at  connnon  law,  and  hence  there  arose  the 
e(iuitable  remedy  of  bills  for  discovery,  which  was  made  use  of 
simply  for  the  purpose  of  assisting  or  supplementing  the  plain- 
tiff's remedy  at  common  law.-' 

Bills  in  equity,  therefore,  came  to  be  filed  not  only  for  the 
purpose  of  discovery  (uid  relief,  but  also  for  the  purpose  of  dis- 
covenj  alone;  and  bills  of  the  latter  description  were  made  use  of 
as  a  distinct  equitable  remedy,  entirely  outside  and  independent 
of  any  equitable  right  or  title  to  relief. 

Bills  of  discovery,  therefore,  in  their  technical  sense,  are  bills 
which  are  hied  for  the  purpose  of  assisting  one  of  the  parties  to 
a  common-law  action;  and  which,  seeking  no  independent  re- 
lief themselves,  aim  solely  at  arming  tlie  complainant  with  the 
necessary  and  proper  means  for  asserting  or  defending  his  right 
or  title  at  law."* 


1  See  ante,  p.  15.  fendant's    knowledge.       Bigelow    v. 

2  It   must,    however,    appear   that  Sanford,  98  Mich.  658. 

the  matters  as  to  which  discovery  is  ^  Cited  in  Reynolds  v.  Fibre  Co.,  71 

sought  are  not  open  to  complainant,  .\.  II.  '.y.V2. 

but   are   necessarily   within    the   de-  ^  See  Kearny  y.  Jeffries,  48 Miss.  357. 


762 


DISCOVKIIY, 


[part  III. 


558.  Subject  not  of  as  iiiucli  importance  as  formerly. 

It  luis  been  already  observed  that  the  necessity  for  this  equi- 
table remedy  has,  in  modern  times,  been  very  much  diminished 
by  statutory  enactments,  whereby  the  same  results  are  attained 
in  common-law  trials;  and,  hence,  this  particular  equitable  rem- 
edy no  longer  deserves  to  occupy  so  important  a  place  as  it 
formerly  did  in  equitable  jurisprudence.  Nevertheless,  it  is 
proper  that  it  should  be  (at  least  briefly)  considered,  partly  be- 
cause it  has  been  decided  in  England,  and  in  some  of  the  states 
of  the  Union,  that  the  chancery  method  of  redress  has  not  been 
ousted  by  the  amendments  to  the  common  law;  ^  and,  partly,  be- 
cause in  eciuity  certain  rides  in  regard  to  this  peculiar  I'emedy 
have  been  laid  down,  which  are  still  considered  applicable  in 
<3ommon-law  suits. 

559.  Discovery  must  he  in  aid  of  legal  proceedings. 

The  object  of  discovery  being  that  the  answer  of  the  defend- 
ant may  be  made  use  of  as  evidence  in  gome  judicial  proceeding 
in  which  no  such  advantage  originally  existed,  it  necessarily  fol- 
lows that  this  equitable  remedy  cannot  be  used  except  for  pur- 
poses connect(^d  with  proceedings  in  legal  trilumals,^  and  except 
in  aid  of  proceedings  in  a  court  which  could  not,  at  common  law. 


1  Lovell  ('.  Galloway,  17  Beav. 
1;  Senior  v.  Pritchard,  16  Id.  473; 
British  Empire  Shipping  Co.  v. 
Somes,  3  K.  &  J.  433;  Shotwell  v. 
Smith,  20  N.  J.  Eq.  70;  Virg.  and 
Ala.  Min.  and  Mfg.  Co.  v.  Hale,  93 
Ala.  542.  See,  however.  Hall  v. 
Joiner,  1  S.  C.  (n.  s.)  186;  Chapman 
V.  Lee,  45  Ohio,  356;  Reynolds  v. 
Fibre  Co.,  71  N.  H.  332;  Wright  v. 
Superior  Court,  139  Cal.  469;  Hur- 
ricane Telephone  Co.  r.  Mohler,  51 
W.  Va.  1.  "Although  the  separate 
proceeding  by  bill  of  discovery  has 
not  been  expressly  abolished  in  our 
state,  under  our  system  of  courts 
and  judicial  procedure  it  could  not 
well  exist."  Wright  v.  Superior  Ct. 
139  Cal.  473. 

2  See  Hare  on  Discovery,  110.  It 
is  not  necessary  that  the  proceedings 
in    aid    of    which    the    discovery    is 


sought  should  be  against  the  defend- 
ant in  the  bill  for  discover}';  they 
may  be  against  a  third  party,  and 
may  be  for  the  purpose  of  finding 
out  who  is  the  proper  party  to  sue. 
See  Orr  v.  Diaper,  4  Ch.  D.  92,  and 
Hurricane  Telephonie  Co.  v.  Mohler, 
51  W.  Va.  1;  Brown  v.  McDonald, 
133  Fed.  Rep.  897.  Where  an  ac- 
tion at  law  is  pending  to  recover  on 
a  life  insurance  policy  shown  to  have 
been  obtained  under  circumstances 
indicating  fraud,  and  one  of  the  de- 
fences is  that  the  insured  committed 
suicide  by  poison,  which  would  avoid 
the  policy  by  its  terms,  a  court  of 
equity  has  power  in  aid  of  such  de- 
fence to  order  the  body  to  be  ex- 
humed for  examination.  Mutual  Life 
Insurance  Company  v.  Griesa,  156 
Fed.  Rep.  398. 


CH.  V]1I.]  DISCOVERY.  763 

itself  give  discovery.^  Thus,  a  bill  of  discovery  cannot  be  main- 
tained if  the  object  is  simply  to  gratify  the  curiosity  of  the  com- 
plainant, nor  will  i-uch  a  bill  be  entertained  in  order  to  aid  pro- 
ceedings in  a  court  which  can,  by  its  own  method  of  procedure, 
attain  the  same  result,  e.  g.,  the  ecclesiastical  courts  in  England, 
which,  as  well  as  the  Court  of  Chancery,  had  the  power  of  en- 
forcing discovery.^  And  a  bill  of  discovery  will  not  lie  in  aid  of 
proceedings  which  are  of  a  criminal  and  not  of  a  civil  nature /"' 
But  the  circumstance  that  the  proceedings  might  have  assumed 
a  criminal  character  is  no  objection  to  the  discovery,  if  in  fact 
the  redress  sought  is  through  the  medium  of  a  civil  action."* 

Bills  of  discovery  are  available  not  only  in  aid  of  judicial  pro- 
ceedings in  the  courts  of  the  same  country,  but  for  the  purpose 
(i  assisting  legal  proceedings  elsewhere;  for  such  a  bill  has  been 
used  to  obtain  information  in  one  statxi  for  the  benefit  of  the 
plaintiff  in  a  suit  in  another.^ 

660.  General  right  of  complainant  in  bills  of  discovers. 

The  general  right  of  the  complainant  in  a  bill  of  discovery  is, 
that  he  is  entitled  to  an  answer  from  every  competent  defend- 
ant as  to  all  facts  material  to  the  whole  of  his  (the  complainant's) 
case,^  and  that  this  answer  must  be  distinct,  complete,  free  from 
needless  prolixity,  and  to  the  best  of  the  defendant's  information 
and  belief.  To  dissect  the  general  rule  thus  stated,  and  to  criti- 
cise and  illustrate  its  different  branches,  would  belong  rather  to 
a  treatise  upon  equitalile  pleading  than  to  one  which  has  for  its 
subject  equitable  principles.  It  will  therefore  be  sufficient  to 
refer  the  reader  to  some  of  the  works  in  which  this  rule  has  been 
particularly  discussed  ? 

561.  Rules  for  protection  of  defendant ;  need  not  discover 
his  own  title,  nor  evidence  thereof. 

1  he  general  rule  just  stated  is  subject  to  certain  qualifications 

1  Hare  on  Discovery,  119.  s  Post  v.  Toledo  R.   R.   Co..    144 

2  Id.,  119.  Mass.  341,  where  the  subject  is  di.s- 

3  Lord    Montague    v.    Dudman,    2      cussed. 

Ves.  Sr.  397;  Cartwright  v.  Green,  8  6  gee  Methodist  Episcopal  Church 

Id.   405;    14   Id.   64;   Hare   on   Dis-  v.  Jaques,  1  Johns.  Ch.  65;  Wistar  v. 

covery,  110.  McManes,  54  Pa.  318. 

*  Thorpe  v.  Macauley,  5  Madd.  135;  7  See  Story's  Eq.  Pleading,    §§  853 

Wilmot    V.    Maccabe,    4    Sim.    263;  et     seq.;     Mitford's     Pleading,     357, 

Hare  on  Discovery,  116.  365. 


■6-1 


DISCOVERY. 


[part  hi. 


by  which  the  complainant's  right  is,  as  it  were,  fenced  about  by 
prohibitions  and  restrictions  which  it  has  been  found  necessary 
to  lay  down  in  order  to  prevent  the  power  of  the  court  from  being 
abused.^ 

And,  first,  the  defendant  is  bound  to  discover  those  matters 
only  which  relate  to  the  plaintiff's  title,  and  is  not  compellable 
to  discover  his  own  title  or  the  means  by  which  he  expects  to 
prove  it.'  The  reason  of  this  rule  is  that  experience  has  shown 
that  the  possible  mischiefs  of  surprise  at  a  trial  are  more  than 
counterbalanced  by  the  danger  of  perjury  which  must  inevitaljly 
hv  incurred  when  either  party  is  permitted,  before  a  trial,  to  know 
the  precise  evidence  against  which  he  has  to  contend;  and  ac- 
cordingly each  party  in  a  cause  has  thrown  upon  him  the  onus 
of  supporting  his  own  case,  and  meeting  that  of  his  adversary 
without  knowing  beforehand  by  what  evidence  the  case  of  his 
adversary  is  to  be  established  or  his  own  opposed.^ 

This  reasoning,  however,  is  not  to  be  extended  too  far,  for 
the  right  of  the  plaintiff  to  discovery  in  support  of  his  own  case 
is  not  to  be  abridged  as  to  any  particular  discovery  by  the  con- 
sideration that  the  matter  of  such  particular  discovery  may  be 
evidence  of  the  defendant's  case  in  common  with  that  of  the 
l)laintift".'* 

Thus  if  a  plaintiff'  is  entitled  to  the  production  of  a  deed  or 
other  document  as  being  applicable  to  his  case,  his  right  to  such 
discovery  will  not  be  affected  by  the  circumstance  that  the  same 
document  is  evidence  of  the  defendant's  case  also.^  And  so,  if  a 
defendant  who  is  bound  to  keep  distinct  accounts  for  another 
party,  improperly  mixes  them  with  his  own,  so  that  they  cannot 
Ixi  severed,  he  must  produce  the  whole .^ 


1  See  Wharton  on  Evidence,  §§  754 
et  seq. 

2  This  rule  is  embodied  in  Sir  James 
Wigram's  third  proposition,  which  is 
as  follows:  "The  right  of  a  plaintiff 
in  equity  to  the  benefit  of  the  defend- 
ant's oath  is  limited  to  a  discovery  of 
such  material  facts  as  relate  to  the 
plaintiff's  case,  and  does  not  extend 
to  a  discovery  of  the  manner  in  which 
the  defendant's  case  is  to  be  exclu- 
sively established  or  to  the  evidence 
which  relates  exclusively  to  his  case." 
Wigram  on  Discovery,  15. 


3  Wigram  on  Discovery,  26.3.  See 
Kettlewell  v.  Barstow,  L.  R.  7  Ch. 
686. 

*  Wigram  on  Discovery,  260.  See 
Brown  v.  Wales,  L.  R.  15  Eq.  142. 

5  Burrell  r.  Nicholson,  1  Myl.  &  K. 
680;  Dock  v.  Dock,  180  Pa.  14,  22; 
Wigram  on  Discovery,  242. 

6  Freeman  ?•.  Fairlie,  2  Meriv.  20; 
Earl  of  Salisbury  v.  Cecil,  I  Cox,  277; 
Hare  on  Discovery,  245;  Wigram  on 
Discovery,  243. 


CH.  VIII.] 


DISCOVERY, 


765 


562.  Need  not  criminate  himself. 

Secondly;  a  defendant  need  not  answer  matters  which  tend 
to  criniinate  himself  or  expose  him  to  a  penalty  or  forfeiture, 
whether  the  matter  inquired  of  b(^  the  broad  and  simple  fact  of 
crime  or  penalty,  or  whether  it  be  isimply  an  incidental  fact  which 
may  form  a  link  in  the  chain  of  evidence,  if  any  one  chooses  to 
indict  him.^ 

But  this  rule  has  some  exceptions,  for  it  has  not  been  invari- 
ably applied  to  all  cases  of  penalties,-  and  it  will  not  be  available 
for  the  purpose  of  preventing  the  detection  of  fraud  or  imposi- 
tion.^ 

563.  Confidential  communications  as  to  litigation. 

Thirdly;  confidential  comnmnications,  matle  to  legal  advisers 
or  agents,  with  reference  to  a  subject-matter  which  afterwards 
comes  into  litigation,  or  with  reference  to  (;[uestions  connected 
with  that  which  afterwards  becomes  the  subject-matter  of  liti- 
gation, are  protected.'' 

The  tendency  of  the  modern  English  authorities  is  to  give  a 
very  wide  scope  to  this  rule,  and  to  afford  protection  in  cases  in 
which,  under  the  narrower  doctrine  which  formerly  existed, 
the  communications  would  not  have  been  considered  privi- 
leged. Thus,  in  Lawrence  v.  Campbell  ^  (decided  in  1859),  Vice- 
Chancellor  Kindersley  laid  down  the  rule  that  it  is  not  now  neces- 
sary, as  it  formerly  was,  for  the  purpose  of  obtaining  protection, 
that  the  communications  should  be  made  either  during  or  relating 
to  an  actual  or  even  to  an  expected  litigation,  l)ut  that  it  is  suf- 
ficient if  they  pass  as  professional  communications  in  a  profes- 
sional capacity.  And  this  rule  was  expressly  a])proved  in  1S73 
by  Lord  Chancellor  Selborne,  in  Minet  v.  Morgan,^  where  not 


1  Adams's  Doct.  Eq.  2.  See  Hill  v. 
Campbell,  L.  R.  10  C.  P.  222,  and  the 
l.mguage  of  Lord  Chief  Justice  Cole- 
ridge on  p.  247. 

2  King  of  Two  Sicilies  v.  Wilcox,  1 
Sim.  (n.  s.)  301 ;  Skinner  v.  Judson,  8 
Conn.  528;  Mitford's  Pleading,  195 
et  seq.  See  Reynolds  v.  Fibre  Co.,  71 
N.  H.  332,  where  a  tort  feasor  was 
compelled  to  produce  fragments  of 
machinery  by  which  plaintiff  had 
been  injured. 


3  Dummer  i'.  Corporation  of  Chip- 
penham, 14  Ves.  256;  Lee  v.  Read,  5 
Bcav.  381 ;  Skinner  v.  Judson,  8  Conn. 
528;  .\ttwood  v.  Coc,  4  Sandf.  Ch. 
413;  Howell  v.  Ashmore,  1  Stockt.  82; 
Reynell  v.  Sprye,  10  Beav.  51;  11  Id. 
618. 

<  See  Wharton  on  Evidence,  §§  576 
et  seq. 

5  4  Drew.  485,  490. 

6  L.  R.  8  Ch.  App.  361. 


766 


DISCOVERY. 


[part  III. 


only  letters  between  the  defendant  and  his  family  solicitors, 
ancl  letters  between  himself  and  his  solicitors  in  the  cause,  but 
also  letters  between  the  defendant's  mother  (through  whom  he 
claimed  title)  and  her  solicitors,  with  reference  to  questions  con- 
nected with  the  matters  in  dispute,  written  before  any  litigation 
was  in  contemplation,  were  protected.^ 

So,  also,  a  liberal  interpretation  was  given  to  another  branch 
of  the  rule  above  stated  by  Vice-Chancellor  Stuart  in  Ross  v. 
Gibbs,^  and  it  was  there  held  by  that  learned  judge  that  con- 
fidential communications,  made  with  an  unprofessional  agent, 
were  privileged,  if  such  conununications  were  made  in  anticipa- 
tion of  and  with  reference  to  a  litigation. 

Following  the  same  liberal  view,  it  has  been  held  that  where 
witnesses  are  examined,  or  a  report  is  made  for  the  purpose  of 
enabling  a  solicitor  to  give  advice  in  regard  to  bringing  or  de- 
fending an  action,  the  notes  of  the  testimony  taken  or  the  re- 
ports of  agents  are  privileged.^ 

The  courts  of  this  country,  however,  do  not  seem  to  have 
carried  the  doctrine  of  privileged  communications  to  the  extent 
which  it  has  reached  in  England.  Thus,  in  Whiting  v.  Barney,^ 
the  Court  of  Appeals  in  New  York  adhered  to  the  old  rule  that  a 
communication,  in  order  to  be  protected,  must  be  made  during 
the  pendency  of  a  cause;  while,  in  several  cases,  the  applicability 
of  the  doctrine  has  been  confined  to  disclosures  made  to  legal 
advisers  only,  and  has  not  been  extended  to  persons  of  a  non- 
professional  character.^     It  is  submitted,   however,   that  the 


i"If  this  question  had  arisen," 
said  the  Lord  Chancellor,  in  this  case, 
"  in  the  days  of  Lord  Cottenham  it 
would  have  better  justified  the  pro- 
longed argument  than  at  the  present 
time.  There  can  be  no  doubt  that 
the  law  of  the  court  as  to  this  class 
of  cases  did  not  at  once  reach  a 
broad  and  reasonable  footing,  but 
reached  it  by  successive  steps, 
founded  on  that  respect  for  princi- 
ple which  usually  leads  the  court 
aright."  .'X.nd  the  chancellor  then 
went  on  to  discuss  the  cases  seriatim, 
and  to  point  out  the  process  by 
which   the    present   doctrine    of   the 


See,  also,  Wilson  ?'.  Northampton 
&  Banbury  Jvmction  Railway  Co., 
L.  R.  14  Eq.  477;  Bullock  v.  Corry, 
3  Q.  B.  D.  356;  The  Southwark  & 
Vauxhall  Water  Co.  v.  Quick,  Id. 
315,  and  McCorquodale  v.  Bell,  1 
C.  P.  D.  471. 

2  L.  R.  8  Eq.  522;  Robson  v.  Doyle, 
191  111.  566. 

3  Learoyd  v.  Halifax  Joint  Stock 
Banking  Co.  [1893],  1  Ch.  686;  Col- 
lins r.  London  Gen.  Omnibus  Co.,  68 
Law  Times,  831 ;  Davenport  v.  Penna. 
R.  R.,  166  Pa.  480. 

4  30  N.  Y.  330. 

5  See  Corps  v.  Robinson,  2  Wash. 


English    courts   had   been    attained.      C.  C.  388;  Andrews  v.  Solomon,  Pet. 


(II.  \  III.] 


DISCOVERY, 


'67 


niodoin  I'^iiglish  rule  is  more  consonant  with  principles  of  justice 
and  ]iul)lic  policy;  and  that  the  true  tests  to  apph^  are  these: 
first,  was  the  communication  made  with  reference  to  that  which 
afterward  became  the  subject  of  litigation?  and,  second,  was  the 
communication  confidential?  If  both  of  these  recjuisites  exist, 
the  sountler  doctrine  would  seem  to  be  that  the  disclosure  should 
be  protected. 

It  must  be  added  that  this  privilege  is  the  privilege  of  the 
client,  not  of  the  counsel.  The  cli(^nt  is  entitled  to  the  protec- 
tion; and  he  alone  can  claim  it.^  Nevertheless,  the  privilege  is 
one  which  counsel  may  set  up,  if  he  himself  is  made  a  defendant; 
and  a  demurrer  by  counsel  to  such  a  bill  will  be  sustained." 

564.  State  secrets. 

Lastly,  official  persons  cannot  be  Compelled  to  disclose  matters 
of  state,  the  publication  of  which  would  l)e  }H-ejudicial  to  the 
interests  of  the  conmiunity.  Ihe  rule  exists  lx)th  at  law  and  in 
e(iuity,  and  in  this  country  as  well  as  in  England.  The  cases, 
however,  in  which  the  question  has  arisen  are  very  few.^ 

Upon  similar  principles  of  public  policy  a  court  of  justice  will 
not  allow  interrogatories  to  l)e  exhibited  for  the  purpose  of  ascer- 
taining the  names  of  informers.  1  he  evidence  is  excluded  not  for 
the  protection  of  the  witness  oi'  of  tlie  i)arty,  but  purely  on  the 
grounds  of  public  policy."* 

It  will  be  remembered  that  a  hona  fide  purchaser  for  value 
without  notice  is  protected  from  discovery.  The  reasons  for 
this  rule,  and  its  nature  and  extent,  have  been  already 
stated.^ 


C.  C.  356;  Goddard  v.  Gardiner,  28 
Conn.  172;  Coon  ;•.  Swan,  :}()  Vt.  6; 
Adams's  Doct.  E(j.  6,  notes. 

1  See  Ross  r.  (iibbs,  L.  R.  8  Eq. 

ry24. 

2  National  Bank  of  West  Grove  v. 
Earle,  196  Pa.  217. 

3  See  Smith  v.  East  India  Co.,  1 
Phillips,  50;  Rajah  of  Coorg  v.  East 
India  Co.,  25  L.  J.  Ch.  365;  Marbury 
r.  Madison,  1  Cranch,  144;  1  Burr's 
Trial,  by  Robinson,  186,  187.  As  to 
obtaining  discovery  from  the  sover- 
eign of  a  foreign  state,  see  King  of 
Spain  V.  Hallet,  6  Clark  &  F.  333; 


United  States  v.  Wagner,  L.  R.  2  Ch. 
582;  Republic  of  Peru  v.  Weguelin, 
L.  R.  20  Eq.  140;  Prioleau  v.  Uni- 
ted States,  2  Id.  659;  Republic  of 
Costa  Rica  v.  Erlanger,  1  Ch.  D.  171; 
Wharton  on  Evidence,  §  604. 

<See  Rex  r.  Akers,  6  Esp.  125; 
Att.-Gen.  r.  Briant,  15  M.  &  W.  169; 
United  States  v.  Moses,  4  Wash.  C.  C. 
726;  Gray  r.  Pentland,  2  S.  &  R.  23; 
Worthington  v.  Scribner,  109  Mass. 
487.  See,  also,  Totten  v.  The  Uni- 
ted States,  92  U.  S.  105. 

5  Ante,  §  275. 


768  DISCOVKKY.  [part  III. 

565.  In  bills  of  discovery  courts  will  go  on  ainl  sifford  re- 
lief. 

Before  leaving  the  subject  of  discovery  it  may  be  desirable 
to  notice  a  question  as  to  which  there  has  been  not  a  little  ein- 
barrassnient  in  the  minds  of  judges  and  authors;  and  that  i.s, 
whether  when  the  jurisdiction  of  equity  has  once  attached  for 
the  purpose  of  discovery,  the  court  will  go  on  for  the  purpose  of 
affording  relief,  although  the  cause  is  not  one  which  v>ould 
ordinarily  fall  within  the  scope  of  a  chancellor's  jurisdiction. 
The  true  rule  would  seem  to  be  that  laid  down  by  a  l(>arned 
writer  in  modern  times, ^  viz.,  that  where  the  bill  is  filed  purely 
in  aid  of  a  legal  right  and  for  the  purpose  of  obtaining  evidence 
to  be  used  in  a  trial  at  law,  the  jurisdiction  will  not  extend  to 
afford  relief;  ^  but  that  where  the  bill  is  based  upon  any  breach 
of  trust  or  duty,  and  an  appeal  to  the  defendant's  conscience  con- 
sec  [uently  becomes  necessary,  the  general  jurisdiction  will  at- 
tach. 

566.  Production  of  documents. 

At  common  law  no  power  existed  in  the  courts  to  compel  the 
production  of  deeds,  books,  and  writings  which  were  in  the 
custody  or  control  of  one  of  the  parties  to  a  cause,  and  which 
were  material  to  the  right,  title,  or  defence  of  the  other."'  .\p- 
plication  was,  consequently,  made  to  the  Court  of  Chancery; 
and  the  jurisdiction  of  the  chancellor  was  frequently  exercised 
for  the  ]:)urpose  of  rectifying  the  defect  in  the  common  law,  and 
of  compelling  such  production. 

1  Mr.  Justice  Redfield,  in  his  edi-  and  ended  with  it,"  by  Fell,  J.,  in 

tion    of   Story's   Equity   Jurisp.,    74  Bank  v.  Kern,  193  Pa.  66.    Sec,  also, 

a,   74  c.     Sec,  aLso,   Pearce  v.  Cres-  Safford  v.  Ensign  Mfg.  Co.,  56  C.  C. 

wick,  2  Hare,  2S.-);  Kcndallville  Co.  .\.  630. 

r.  Davis  &  Rankin,  40  111.  App.  616;  Where  a  proper  case  for  discovery 

Virg.  &  Ala.  Min.  &  Mfg.  Co.  v.  Hale,  is  presented  a  bill  asking  both  dis- 

93   Ala.   542;   Black   v.   Bohlen,    175  covery    and    relief    is    maintainable; 

Pa.  491;  Freer  r.  Davis,  52  W.  Va.  and    the    court    having    jurisdiction 

1,  35.     See,  however,  Smith  r.  Smith,  for  the  purpose  of  discovery  will  go 

92  Va.  696.  on  to  give  relief.     But  this  rule  can- 

-  "As  originally  filed  the  bill  was  not  be  abused  by  being  employed  as 

for   discovery    in    aid    of   an    execu-  a  mere  pretext  for  bringing  causes 

tion.   ...  As  a  bill  for  discovery  for  proper  for  a  court  of  law  into  a  court 

the  purpose  of  obtaining  evidence  and  of  equity.     Larkey  v.  Gardner,   105 

in  aid  of  a  legal  right  it  did  not  draw  Xii.  718. 

the    whole    case    into    ccjuity.      The  ^2   Black.  Com.  382;  Story's  Eq. 

jurisdiction  was  for  discovery  only,  Jurisp.  §  1485. 


CH.  VIII,]  DISCOVERY,  760 

This  equitable  remedy  is,  however,  of  scarcely  any  importance 
at  the  present  day;  as,  both  in  England  and  in  this  country, 
statutes  have  been  passed  b}^  which  the  authority  to  compel  the 
production  of  documents  is  conferred  upon  the  common-law- 
courts.^  The  consideration  of  this  subject  may,  therefore,  be 
dismissed  with  the  single  remark  that  the  rules  which  govern 
bills  in  equity  for  the  production  of  documents  are  similar  to 
those  by  which  the  right  to  discovery  is  regulated,  and  which 
have  been  already  noticed. 

567.  Commissions  to  examine  witnesses  abroad  ;  to  take 
testimony  de  hem  esse. 

The  remarks  just  made  will  also  apply  to  bills  for  commis- 
sions to  examine  witnesses  abroad,  and  to  bills  to  take  testimony 
de  bene  c^^-ic.  Such  bills  were  formerly  necessary  in  consequence 
of  the  inability  of  the  connnon-law  courts  to  accomplish  the 
object;  but  this  defect  has  long  since  been  remedied,  and  the 
equitable  remedy  has  fallen  almost  completely  into  disuse,^ 

1  The  jurisdiction  in  equity,  how-  647;  Safford  v.  Ensign  Mfg.  Co.,  50 

ever,    still   exists.      Equitable  Trust  C.  C.  A.  630. 

Co.  ('.  Caris,  190  Pa.  544-549.     But  2  Story's  Eq.  Jurisp.  §  1514,  note; 

see,  contra,  Ex  parte  Boyd,  105  U.  S.  Adams's  Doct.  Eq,  23. 

49 


70 


BILLS   QUIA   timet;    KLCEIVERS,    ETC.  [PART  III. 


CHAPTER  IX. 

BILLS   QUIA   timet;    RECEIVERS;    WRITS     OF     NE    EXEAT)   AND    OK 

SUPPLICAVIT. 


568.  Bills  Quia  Timet;  their  general 

nature. 

569.  Examples. 

570.  Personal    property    limited    for 

life  with  remainders  over. 

571.  Courts  of  equity  will  not  enter- 

tain   bills    solely    to    declare 
rights. 

572.  Will    not    interfere    in    certain 

cases  of  covenants. 
57.3.   Bills  to  perpetuate  testimonj-. 
674.  Bills  to  establish  wills. 
575.  Bills   to  remove   a   cloud   from 

title. 


576.  Receivers;  general  nature  of  the 

jurisdiction. 

577.  Appointment  a  matter  of  dis- 

cretion;   rules    under    which 
the  discretion  is  exercised. 

578.  Cases  in  which  a  receiver  will  l:>o 

appointed. 

579.  Effect  of  appointment. 

580.  Powers  and  duties  of  a  receiver. 

581.  Writs  of  Xe  Exeat. 

582.  Writs  of  Supplicavit. 

583.  Progressive  capacity  of  Equity 

Jurisprudence. 


568.  Bills  Quia  Timet  ;  their  general  nature. 

Bills  quia  timet  in  equity  answer  to  the  brevia  anticipaniia 
of  common  law.  These  wiits  are  enumerated  and  exj)lained  l>y 
Coke.  "And  note,"  he  says,  "that  there  be  six  writs  in  law  that 
may  be  maintained,  quia  timet,  before  any  molestation,  distress, 
or  impleading.  As  (1)  a  man  may  have  a  writ  of  mesne  (whereof 
Littleton  here  speaks)  before  he  be  destrained;  (2)  a  warrantia 
chartce  before  he  be  impleaded;  (3)  a  monstraverunt  before  any 
distress  or  vexation ;  (4)  an  audita  querela  before  any  execution 
sued ;  (5)  a  curia  claudenda  before  any  fault  of  inelosure ;  and  (6) 
a  ne  injuste  vexes  before  any  distress  oi*  molestation."  ^  By 
analog}'  to  these  writs,  bills  in  equity  arc  sometimes  entertained 
to  guard  against  possible  or  prospective  injuries,  and  to  preserve 
the  means  by  which  existing  rights  may  be  protected  from  future 
or  contingent  violations.  The  principle  upon  which  the  court 
acts  in  such  cases  is  that  justice  sometimes  requires  that  a  man 
shall  not  be  compelled  to  have  hanging  over  him,  or  his  title,  for 
an  indefinite  time,  some  claim  or  dcMuand  or  Mability,  which,  if 

1  Co.  Litt.  100,  a. 


CH.  IX.]  BILLS   C^UIA    JJ.MK'I';    KKCEIVERS,    ETC.  771 

enforced,  would  subject  liiiii  to  loss;  but  that  he  is  entitled  to 
have  the  questions  relating  to  his  rights  settled  at  once  and  loi- 
ever,  to  have  the  claim  against  his  rights  immediately  enforct;d, 
or  to  be  presently  made  s(>cure  against  an}^  future  liability.^  It 
will  be  seen  that  relief  of  this  sort  goes  one  step  further  than  the 
relief  by  injunction.  Injunctions  restrain  a  person  from  con- 
tinuing an  infringement  upon  the  rights  of  another,  and  (in  some 
cases)  will  prevent  the  commission  of  a  threatening  injuiy.  But 
a  bill  quia  timet  proceeds  to  the  extent  of  securing  rights  against 
an  invasion,  which  need  not  be  inmiinent  or  certain,  but  which 
may  be  only  future  and  contingent.  Looking,  therefore,  upon 
three  of  the  equitable  remedies  which  are  noticed  in  the  present 
treatise,  as  arranged  in  an  ascending  scale,  we  have,  upon  the 
lowest  step,  mandatory  injunctions,  correcting  past  injuries  and 
restoring  rights;  upon  the  next,  prohibitory  injunctions,  prevent- 
ing present  or  imminent  injuries  and  preserving  rights;  and  upon 
the  last,  bills  quia  timet,  anticipating  and  guarding  agdmsi  future 
and  contingent  injuries,  and,  as  it  were,  insuring  rights. 

It  is,  perhaps,  impossible  to  define  the  exact  boundaries  which 
circumscribe  the  area  of  the  equitable  remedy  of  bills  quia  timet, 
as  they  are  not  unfrequently  entertained  upon  the  peculiar  cir- 
cumstances of  each  individual  case,  and  the  instances  in  which 
the  jurisdiction  has  been  exercised  are  to  be  regarded  rather  as 
illustrations  of  the  remedy,  than  as  indicating  the  limitations 
of  its  extent. 

569.  Examples. 

A  few  examples,  however,  of  bills  of  this  kind  will  assist  in 
making  clear  the  general  character  and  scope  of  this  etiuitable 
remedy.  Ranelaugh  v.  Hayes  -  is  a  case  which  is  frec^uently  cited 
as  an  illustration  of  bills  of  this  class. ^  In  this  case  the  plaintiff 
assigned  several  shares  of  the  excise  in  Ireland  to  the  defendant, 
and  the  latter  cov(>nanted  "to  save  the  Lord  Ranelaugh  harmless 
touching  three  parts  of  afarm,'^  assigned  to  Hayes,"  and  to  stand 
in  his  place  touching  the  payments  to  the  king  and  other  mat- 
ters. Afterward,  the  king  sued  the  plaintiff  for  money  which 
the  defendant  ought  to  have  paid,  and  the  former  then  filed  his 

'  Ilopponstfill  ?'.  I.onp:,  217  l^i.  191.  <  The  Irish  excise'was  farmed  out 

^  1  Vorn.  18!).  by  Charles  II. 

3  See    Story's    Eq.    Jurisp.    §850; 
Rawle  on  Covenants  for  Title,  652. 


772 


BILLS   QUL\   timet;    RECEIVERS,    ETC.  [PART  III. 


bill.  The  court  decreed  that  the  agreement  should  be  specifically 
performed,  and  referred  it  to  a  master  with  the  direction  that 
toties  quoties  any  breach  should  happen  he  should  report  the  same 
especially  to  the  court,  so  that  the  court  might,  if  there  should 
be  occasion,  direct  a  trial  at  law  in  a  quantum  damnificatus.  The 
court  further  decreed  that  the  assigxiee  should  clear  the  assignor 
from  mU  these  suits  and  encumbrances  within  a  reasonable  time. 
The  case  was  compared  to  that  of  a  counter-bond,  where  although 
the  surety  is  not  molested  or  troubled  for  the  debt,  yet  after  the 
money  becomes  payable  the  court  will  decree  the  principal  to 
pay  it.'  A  more  modern  example  of  the  same  kind  of  relief  will 
be  found  in  the  case  of  Hemming  v.  Maddick,^  where  the  plain- 
tiff, who  had  been  made  a  contributory  in  respect  of  certain 


1  But  the  form  of  decree  in  Rane- 
laugh  V.  Hayes  was  strongly  dis- 
approved in  Lloyd  r.  Dimmack,  7 
Ch.  D.  401,  and  in  Hughes  llallett 
r.  Indian  Mammoth  Gold  Mines  Co., 
22  Id.  564.  In  the  first  case.  Fry,  J., 
said:  "The  next  question  is  whether 
I  can  give  judgment  in  the  form 
asked  for  by  the  plaintiff's  counsel 
declaring  that  the  defendants  are 
bound  to  indemnify  according  to  the 
terms  of  the  deed,  and  giving  liberty 
to  apply  from  time  to  time  as 
breaches  of  the  indemnity  may  occur. 
Now,  in  the  first  place,  it  will  be  ob- 
served that  such  a  judgment  would  be 
highly  inconvenient,  because  some 
of  the  leases  are  for  long  terms  of 
years  and  I  should  be  giving  a  judg- 
ment which  would  require  from  time 
to  time  the  interference  of  the  court 
over  the  whole  residue  of  a  term  of 
ninety-nine  years  beginning  in  186U. 
I  think  such  a  form  of  judgment 
would  be  highly  inconvenient.  In 
the  next  place,  I  am  not  aware  that, 
with  the  single  exception  of  the  case 
of  Ranolaugh  /■.  Hnyes,  any  au- 
thority can  be  produced  for  a  judg- 
ment of  that  di'scriptioii.  That  is  a 
case  which  I  believe  has  never  been 
actually  followefl.  It  has  been  cited 
over  and  over  again,  but  the  industry 


and  learning  of  the  counsel  of  the 
plaintiff  have  not  enabled  them  to 
produce  a  single  case  in  which  a  de- 
cree has  been  made  declaring  the 
right  to  indemnify  and  giving  lib- 
erty to  apply  from  time  to  time. 
Therefore,  upon  the  ground  of  the 
great  inconvenience  of  such  a  judg- 
ment, and  looking  at  the  fact  that 
no  decree  can  be  produced  from  the 
time  of  Ranelaugh  v.  Hayes  down  to 
the  present  time,  and  looking  at  the 
not  very  clear  report  of  that  case 
and  the  difficulty  of  ascertaining 
the  exact  circumstances,  and  espe- 
cially what  was  the  duration  of  the 
liability  in  respect  of  which  that  in- 
demnity was  declared,  I  feel  myself 
l)()und  to  say  that  I  cannot  make 
such  a  declaration  or  give  such  a 
general  liberty  to  apply."  With  due 
deference,  however,  to  this  opinion, 
it  would  seem  that  the  advantages 
to  be  derived  from  a  form  of  decree 
such  as  was  entered  in  Ranelaugh  v. 
Haj'es  are  very  great,  and  ought  not 
to  be  discarded  except  under  some 
very  decided  argument  ab  incon- 
venienli  in  a  given  case.  It  is  sub- 
mitted therefore,  that  the  general 
rule,  as  stated  in  the  text,  is  sound. 
2  L.  R.  7  Ch.  395. 


ClI.  IX.] 


BILLS    QUIA    TIMF.T:    inXKIVEIiS.    KTC. 


I  /.) 


shares  of  a  joint-stock  company,  which  was  being  wouiul  up 
under  the  Enghsh  ('ompanies  Act  of  1.S62,  filed  a  bill  in  which 
he  alleged  that  he  had  taken  the  shares  under  an  arrangement 
with  the  defendant  that  he  should  hold  them  on  behalf  of  the 
defendant,  and  deal  with  them  as  the  defendant  should  diicci, 
and  that  the  defendant  should  indemnify  him  against  all  loss  or 
liability  which  he  might  incur  as  the  holder  of  the  shares.  'Hie 
prayer  of  the  bill  was  that  the  defendant  might  be  ordered  to 
reimburse  to  the  plaintiff  all  sums  of  money  which  he  had  paid 
for  calls  and  all  costs  et  ccetera,  and  to  indemnify  him  against  all 
liability  in  consequence  of  his  being  made  a  contributory.  'J  he 
trust  having  been  satisfactorily  established  by  the  evidence,  tlie 
plaintiff's  right  to  the  indemnity  was  treated  as  a  mailer  of 
course,  and  a  decree  was  made  accordingly.* 

Under  the  same  principle  fall  cases  in  which  decrees  have 
been  entered  for  the  payment  of  anniiiti(>s.  Agreements  to 
make  such  payments  are  usually  enforced  by  appointing  a  re- 
ceiver, but  in  some  instances  decrees  have  been  made  providing 
for  an  order  directly  upon  the  defendant.  Such  cases,  indeed, 
are  merely  examples  of  the  doctrine  which  has  been  so  fre- 
c^uently  referred  to — namely,  that  relief  will  be  afforded  in  all 
cases  in  which  there  is  not  a  full,  adequate,  and  complete  remedy 
at  law.^ 

570.  Personal  property  limited  for  life  with  remaiiuiers 
over. 

Bills  quia  timet  are  also  frequently  entertained  in  cases  where 
personal  property  is  limited  for  life,  with  remainders  over,  and 
when  there  is  danger  of  loss  or  deterioration  or  injury  to  it  in  the 
hands  of  the  tenant  for  life.  In  such  cases  a  court  of  equitj'  will 
interfere  at  the  instance  of  a  remainderman,  and  if  necessary- 
will  require  security  to  be  given  for  the  production  of  the  ))roj)- 
erty  upon  the  termination  of  the  life  interest  .^ 


1  See  further  as  to  decrees  of  in- 
demnity as  illustrated  by  the  case 
of  sureties,  ante,  §  331,  and  cases 
cited  in  notes. 

2  See  Keenan  v.  Handley,  2  De  G., 
J.  &  S.  283;  Carbery  r.  Western,  1 
Brown  Pari.  Cas.  429;  Fleming  ?'. 
Peterson,  167  111.  470. 

3  See  Flight  v.  Cook,  2  Ves.  619; 


James  v.  Scott,  9  Ala.  579;  Emmons 
V.  Cairns,  2  Sandf.  Ch.  369;  McDouo:.tl 
r.  .Armstrong,  6  Humph.  ir)7,  4'JS: 
Bowling  ('.  Bowling,  G  B.  Mon.  'M ; 
Cranston  i'.  Plumb,  54  Barb.  54: 
Van  Duyne  v.  Vreeland,  12  N.  J.  Eq. 
142;  McNeill  v.  Bradloy,  G  Jones  Eq. 
41.  See  Dreyfus  r.  Peruvian  Guano 
Co.,  42  Ch.  D.  75. 


774 


J3iLi>s  Qi  lA  TiMirr;  i(i:c'ki\'eks,  etc.-        [taut  hi. 


571.  Courts  of  equity  will  not  eutertaiii  bills  solely  to  de- 
clare rights. 

But  \Ahile  a  court  of  equity  will  interfere  for  the  purpose  of 
protecting  the  interest  of  reniaindernien  when  the  property  is 
in  danger,  it  will  not  interi)ose  ni(;rely  in  order  to  declare  future 
rights.  The  Scotch  tribunals  pass  upon  such  questions  by 
''declarator;"  but  such  a  power  has  not  been  assumed  by  courts 
of  equity,  either  in  England  or  in  this  country.^  It  is  true  that 
it  is  a  very  conunon  exercise  of  chancery  powers  to  declare  the 
effect  and  validity  of  future  and  contingent  limitations  in  wills, 
(>ven  as  to  persons  not  in  esse,  upon  bills  filed  by  executors  and 
trustees,  asking  for  the  direction  of  the  court  as  to  the  disposition 
of  the  property.^  But  bills  of  this  kind  are  entertained  upon  the 
ground  that  a  trustee  is  always  entitled  to  come  into  chancery 
for  advice  and  assistance  in  the  administration  of  the  trust;  ^  and 
do  not,  therefore,  in  any  way,  militate  against  the  doctrine  just 
stated,  as  to  mere  declarations  of  future  rights.^ 

573.   Will  not  interfere  in  eertjiin  cases  of  covenants. 

Another  illustration  of  the  limitations  which  courts  of  equity 
have  deemed  proper  to  place  upon  relief  of  a  quia  timet  character, 
is  found  in  those  cases  in  which  a  purchaser  of  land  takes  it  sub- 
ject to  an  encumbrance  of  which  he  is  aware,  and  takes  also  a 
covenant  from  the  vendor  against  the  encumbrance.  In  such 
cases  it  has  been  held  that  the  purchaser  cannot,  under  such 
circumstances,  file  a  bill  quia  timet,  and  obtain  an  indemnity 
from  the  vendor;  the  ground  of  these  decisions  being  that,  as 


1  See  Grove  v.  Bastard,  2  Phillips, 
021;  Langdale  v.  Briggs,  39  Eng. 
Law  and  Eq.  214;  8  De  G.,  M.  &  G. 
391;  Cross  v.  De  Valle,  1  WaU.  14; 
Ilann  v.  Hann,  58  N.  J.  Eq.  211; 
Girard  v.  Philadelphia,  7  Wall.  1 
(and  the  remarks  of  the  court  on 
}).  15);  Willard's  Appeal,  65  Pa.  265, 
and  Morton's  Estate,  201  Id.  269. 

2  "  A  bill  in  equity  cannot  be  main- 
tained simply  to  establish  the  fact 
of  a  trust,  no  other  relief  being 
sought,  even  where  its  existence  is 
denied;  if,  however,  the  supposed 
trustee  is  about  to  leave  the  juris- 
diction,   so   that   no   relief   coxM    he 


obtained,  the  court  will  entertain 
the  bill  and  declare  the  trust,  if 
proved,  and  retain  the  bill  for  further 
action."  Perry  on  Trusts,  §  17, 
citing  Baylies  v.  Payson,  5  Allen, 
473;  Price  v.  Minot,  107  Mass.  62. 

3  Ante,   p.  229;  Hill  on  Trustees, 
543. 

*  See  the  remarks  of  Mr.  Justice 
Grier,  in  Cross  v.  De  Valle,  1  Wall 
15,  16.  As  to  special  cases  which 
may  be  submitted  to  the  courts  in 
England  imder  13  and  14  Vict.,  c.  35, 
see  Forsbrook  v.  Forsbrook,  L.  R.  2 
Eq.  799;  3  Ch.  93. 


(li.ix.]  Dii.i.s  ii\i\  timet;  ){i;ckivkh8,  etc.  77") 

llic  purchaser  1ms  chosen  to  rest  upon  the  covenant,  a  court  of 
equity  will  not  make  a  new  contract  for  the  parties.^ 

673.  Bills  to  perpetuate  tesliinony. 

Bills  to  PcrjH'liiatc  'rcsliniony,  aiul  Hills  to  Establish  Wills, 
are  also  in  the  nature  of  hills  quia  twiet.  The  perpetuation  of 
testimony  is  necessary  when  the  complainant  is  not  actually 
threatened  with  awx  (listurbance  of  his  rights,  but  fears  that  he 
may  be  disturbed  at  some  future  time  when  the  evidence  of  his 
title  may  have  been  lost.  Upon  a  bill  being  filed,  in  such  a  case. 
the  depositions  of  witnesses  are  taken  before  an  examiner,  and 
a  decree  is  then  made  that  the  depositions  so  taken  shall  re- 
main to  perpetuate  the  memory  thereof.  Bills  of  this  description 
have  been  of  very  frequent  occurrence  in  Pennsylvania,  for  the 
purpose  of  preserving  the  evidence  of  a  re-entry  upon  land,  con- 
veyed on  ground-rent,  for  non-payment  of  arrears  of  rent. 

In  order  to  maintain  a  bill  for  the  perpetuation  of  testimony, 
it  is  necessary  that  the  matter  should  be  one  which  cannot  hv 
made  the  subject  of  present  judicial  investigation.  If  a  party 
is  in  a  situation  actively  to  assert  his  right,  eith(>r  at  law  or  in 
(equity,  he  cannot  maintain  a  bill  to  perpetuate  the  testimony, 
for  he  can  obtain  the  same  redress  by  proceeding  at  once  to  a 
substantial  assertion  of  his  title  by  suit  at  law  or  bill  in  equity. 
And  even  if  a  party  is  not  in  a  condition  to  make  himself  a  plain- 
tiff,  yet  if  an  action  is  brought  against  him  touching  the  subject- 
matter,  he  cannot  file  a  bill  for  the  perpetuation  of  testimony, 
and  a  demurrer  to  such  a  bill  will  be  sustained,  on  the  ground 
that  the  complainant's  rights  can  be  ascertained  and  settled 
in  the  suit  alrearly  pending.' 

674.  Bills  to  establish  wills. 

Bills  to  Establish  ^^'ills  proceed  upon  a  similar  principle.  Ac- 
cording to  the  modern  principles,  such  a  bill  may  be  filed  b}'  a 
devisee  in  possession  against  an  heir  who  has  brought  no  action 

1  See  Refeld  v.  Woodfolk,  22  How.  petuato  testimony,  Dursley  v.  P'itz- 
318;  Rawle  on  Covenants  for  Title,  haniinge,  (>  Ves.  251;  Duke  of  Dor- 
683,  684  (4th  ed.);  Story's  Eq.Jurisp.  set  v.  Girdler,  Prec.  Ch.  531;  .\ngell 
§  850,  a  (Uth  ed.).  r.  Angell,  1  vSim.  &  Stu.  83;  Beavan 

2  See  Earl  Spencer  v.  Peek,  L.  R.  3  v.  Carpenter,  11  Sim.  22;  Wright  v. 
Eq.  415,  where  this  point  is  thor-  Tatham,  2  Id.  459;  Story's  Eq. 
oughly   discussed.      See,    also,    upon  Plead.  §§  300  et  seq. 

the  general  subject  of  bills  to  per- 


776 


,I.S    ()l    lA     1  IM 


lUCCF.IVKItS,     KTC.  [i'Airr  III. 


of  ejectment,  all  hough  no  trusts  are  declared  liy  the  will,  and 
iiltliougli  it  is  not  necessary  to  administer  the  estate  under  the 
direction  (if  llic  ('oui(  of  Cliancery.'  And  the  same  relief  will 
also  he  alToiilcd  not  only  aii,ainsl  an  lu-u-,  hut  also  ap;ainsl  parties 


claiming  under  another  wlll.- 


575.  Bills  to  remove  a  cloud  from  title. 

Bills  to  remove  a  cloud  from  a  title  may  sometimes  also  fall 
under  the  head  of  relief  <nii<i  timet,  although,  as  has  been  seen, 
they  may  occasional!}'  he  ])i'()perly  classed  under  bills  for  the 
surrender  and  cancellation  of  void  instruments/''  The  doctrine, 
howcvei',  is  not  confined  in  its  application  simply  to  cases  in 
which  a  void  or  voidalile  instrument  is  sought  to  be  cancelled. 
It  may  be  asserted  in  almost  imy  case  in  which  justice  requires 
that  the  title  of  a  party  in  ])ossession  should  be  quieted,  and  the 
evidence  of  that  title  is  cleai-.^  Generally,  the  test  by  which  to 
determine  the  existence  of  a  cloud  u])o]i  the  title  is  whether  in 
ejectment  by  the  grante(>  in  the  deed  upon  which  the  adverse 
title  rests,  the  owner  in  ))ossession  would  be  re([uired  to  offer 
evidence  to  defeat  a  recovery.  If  such  evidence  would  be  neces- 
sary, a  cloud  exists.^    The  principle  upon  which  these  bills  are 


'  Boyse  v.  Rossborough,  Kay,  71; 
affirmed  in  3  De  G.,  M.  &  G.  817; 
and  on  appeal  to  the  House  of  Lords, 
nam.  Colclougli  r.  Boyse,  6  H.  L. 
Cas.  1.  See,  also.  Fidelity  Ins.  Co.'s 
Appeal,  99  Pa.  460;  Hall's  Appeal, 
112  Id.  .54,  and  McClane  r.  McGlano. 
207  Id.  465. 

2  Lovett  V.  Lovett,  3  K.  &  J.  1.  In 
re  Tayleur,  L.  R.  6  Ch.  416,  was  a 
somewhat  curious  application.  The 
committee  of  a  wealthy  lunatic,  who 
liad  made  two  wills  before  he  was 
found  a  lunatic,  asked  for  leave  to 
pay  out  of  the  estate  tiie  costs  of  the 
plaintiffs  and  defendants  in  a  suit 
to  perpetuate  testimony  as  to  the 
two  wills.  The  court  declined  to  ex- 
press any  opinion  upon  the  question 
whether  or  not  s\ich  a  bill  would 
lie,  but  granted  the  prayer  of  the 
committee. 

3  See  ante,  §  474;  Dull's  Appeal,  113 


Pa.  515.  See,  also,  Stebbens  v.  Perry 
Co.,  167  111.  574,  where  a  decree  was 
made  for  the  cancellation  of  .stock 
illegally  issued,  on  the  ground  that 
to  allow  such  illegal  stock  to  remain 
outstanding  would  be  to  cast  a  cloud 
upon  the  title  of  other  stockholders. 

^  Alexander  v.  Pendelton,  8  Cranch, 
462;  Mellen  v.  Moline  Iron  Works, 
131  U.  S.  365;  Alsop  v.  Eckles,  81 
111.  424;  Parker  v.  Stevens,  59  N.  H. 
203;  Corinth  r.  Locke,  62  Vt.  411; 
Loring  v.  Llildreth,  170  Mass.  328. 
The  evidence  must  be  clear,  for 
equity  will  not  lend  its  aid  to  try 
conflicting  titles.  See  Handy  v 
Noonan,  51  Miss.  166;  Phelps  v. 
Harris,  Id.  789;  Chiles  v.  Gallagher, 
67  Miss.  413. 

5  Sloan  V.  Sloan,  25  Fla.  53;  Han. 
&  St.  Jo.  Ry.  Co.  V.  Nortoni,  154  Mo. 
142:  Hanesley  v.  Bagley,  109  Ga. 
346;  Parker  v.  Boutwell,  119  Ala.  297. 


ClI.  IX.] 


BILLS    yl   lA    TJ.MKT;    i;  KCKIVEKS,    ETC. 


based  is,  simply,  that  it  is  inequitable  that  a  party  in  possession 
snould  be  embarrassed  by  having  hanging  over  him  a  hostile 
claim,  wliicli,  although  not  actively  asserted,  and  not  of  any 
validity,  is  nevertheless  ealeulated  to  affeet  the  marketability 
of  the  title.  The  jurisdiction  of  Courts  of  Chancery  in  such  eases 
is  well  established.'  Whether  it  is  essential  to  the  assertion  of 
this  equity,  that  the  complainant  should  Ix;  in  possession,  is  a 
(juestion  as  to  which  there  has  been  some  variance  in  the  de- 
cisions.- In  some  cases  it  is  held  that  possession  is  indispensable, 
and  that  this  fact  should  be  averred  in  the  bill.^     In  others. 


1  Doe  V.  Doe,  37  N.  H.  268;  Tucker 
V.  Kenniston,  47  Id.  267;  Kimberley 
V.  Fox,  27  Conn.  307;  Eldridge  r. 
Smith,  34  Vt.  484;  Polk  v.  Rose,  2.', 
Md.  153;  Brown  ?'.  Stewart,  56  Id. 
431;  Allen  v.  Waldo,  47  Mich.  516; 
Shattuck  V.  Carson,  2  Cal.  588;  Whil- 
lock  V.  Grisham,  3  Sneed,  237;  .\t- 
mony  v.  Hicks,  3  Head,  39;  Hol- 
land V.  Mayor  of  Baltimore,  11  Md. 
186;  Belknap  v.  Belknap,  2  Johns.  Ch. 
472;  Starr  v.  Starr,  1  Ohio  (Ham.), 
321;  Scofield  v.  Lansing,  17  Mich. 
4.!7  (a  bill  to  restrain  the  collection 
of  a  tax);  Finch  v.  Resbridger,  2 
\crn.  ;J90;  Story's  Eq.  Jur.  §  700. 
See,  also,  Kay  v.  Scates,  37  Pa.  31 ; 
Bacon's  App.,  57  Id.  504;  Groves  v. 
Webber,  72  111.  606;  Re>Tiolds  v. 
Crawfordsville  Bk.,  112  U.  S.  405; 
Rich  ?•.  Braxton,  158  Id.  375;  Lud- 
ington  r.  Elizabeth,  34  N.  J.  Eq.  537; 
Sanders  r.  Village  of  Yonkers,  6.'; 
N.  Y.  489;  X.  Y.,  Ont.  &  Western 
Ry.  V.  Davenport,  65  How.  Pr. 
(X.  Y.)  484;  Goodell  r.  Blumer,  41 
Wis.  436;  Wiard  r.  Bnnvii,  59  Cal. 
194;  Jewett  v.  Boanlman,  181  Mo. 
647;  Borie  v.  Satterthwaite,  180  Pa. 
542;  Shaw  r.  Allen,  184  III.  77;  Article 
in  20  Am.  Law  Reg.  (x.  s.)  561,  by 
Henry  Wade  Rogers,  ante,  §§  193  and 
475.  This  jurisdiction  in  some  states 
is  provided  for  by  statute.  See  §  809, 
Code  of  Alabama ;  Collier  r.  .Vlexan- 
der,  138  Ala.  245. 

2  In  an  action  to  quiet  title  to  real 


estate  where  plaintiff  i.s  out  of  pos.ses- 
sion  and  there  is  some  other  distinct 
head  of  equity  jurisdiction  sufficient 
to   support   the   action,    equity   will 
retain  the  cause  and  grant  relief  by 
quieting   title   or   removing  a  cloud. 
Gutheil  Co.  v.  Montclair,  32  Colo.  420. 
3  Frost  V.  Spitley,  121  U.  S.  552; 
Peck  V.  Ayres  &  Lord  Tie  Co.,   53 
C.  C.  A.  551;  Gage  v.  Griffin,  103  111. 
41;   Gage  v.   Schmidt,    104   Id.    106. 
See,  also,  Haythorn  v.  Margerem,  7 
N.  J.  Eq.  324;  Kilgannon  v.  Jenkin- 
son,  51  Mich.  240;  Tarwater  v.  Going, 
140  Ala.  273;  Belcher  v.  Scruggs,  125 
Id.    336    (the    possession    must    not 
have  been  taken,  simply  for  the  pur- 
pose of  giving  jurisdiction);  Crosby 
V.    Hutchinson,     126    Mich.    56    (to 
same  effect) ;   Clem  v.  Meserole,   44 
Fla.  191;  Cornelison  v.  Foushee,  101 
Ky.  257;  Kane  v.  Va.  Coal  and  Iron 
Co.,  97  Va.  329;  Smith  v.  Thomas,  99 
Id.  86;  Steinman   c.  Vicars,   99   Id. 
595;    Davis   v.    Sloan,    95   Mo.    552; 
McDonald    v.    White,    130    HI.    493; 
Robertson      v.     Wheeler,      162      Id. 
566;    Hoffman    v.    Woods,    40    Kan. 
382;  Carter  v.  Woolfork,  71  Md.  283; 
Toxtor  r.  Shipley,   77  Id.  473   (see, 
however,    Oppenheimer   v.    Levi,    96 
Md.    296);    Winn   v.    Strickland,    34 
Fla.  610;  Snow  v.  Russell,  93  Me.  362; 
McMullen    ?•.   Cooper,    125   Ga.   435. 
I'nless   the   premises   is  vacant   and 
unoccupied,    Glos    v.    Kenealy,    220 
111.  540;  Brownback  v.  Keister,  220 


r7S 


lULI.S    gl   lA    TI.MKl 


HKCKIVERS,    ETC. 


[PAKT  III. 


the  coiitrury  has  been  ruled;  '  and  tliis  «eenis  to  be  the  better 
doctrine,  especially  where  the  bill  is  filed  by  a  remainderman 
(liirinft-  the  continuance  of  the  particular  estate.- 

Ant!  a  liill  has  been  entertain(>(l  on  the  part  of  a  ven<lor  who 
has  parted  with  both  litle  and  possession,  inasmuch  as  his  obli- 
gation under  his  \\'arranty  entitles  him  to  a  standing.^ 

This  jurisdiction,  however,  will  not  be  exercised  unless  some 
(•([uity  is  apparent,  or  a  cloud  would  otherwise  exist  against  the 
title  of  the  complainant.  If  no  such  ec^uity  is  shown,  or  no  such 
injury  is  likely  to  ensue,  the  relief  will  be  refused.^ 


676.  Receivers  ;  general  n.ature  of  the  jurisdiction. 

Another  of  those  equitable  remedies  which  have  for  their 
object  the  prevention,  rather  than  the  redress,  of  injuries  is  found 
in  the  relief  given  by  Courts  of  Chancery  by  means  of  the  appoint- 
ment of  receivers.  The  appointment  of  receivers  has,  indeed, 
in  many  treatises,  been  classed  under  the  head  of  the  quia  timet 
jurisdiction  of  chancery,  and  in  a  certain  sense  this  classification 
is  correct;  but,  perhaps,  it  would  be  still  more  accurate  to  say 
that  the  relief  afforded  by  the  appointment  of  receivers  is  one 
of  several  phases  which  the  preventive  jurisdiction  of  the  Coiu1 


111.  544;  Mackey  v.  Maxin,  63  W.  Va. 
14;  Austin  r.  Minor,  107  Va.  101; 
Tax  Title  Co.  v.  Denoon,  107  Va. 
201;  Delaney  v.  O'Donnell,  234  111. 
109;  Miller  ?-.  Ahrens,  150  Fed.  Rep. 
644. 

1  Thompson  v.  Lynch,  29  Cal.  189; 
Almony  i'.  Hicks,  3  Head,  39;  Jones 
V.  Nixon,  102  Tenn.  95;  Lyon  r. 
Gombert,  63  Neb.  630;  Packard  v. 
Reaver  Valley  Co.,  96  Ky.  249; 
Phillips  r.  Kesterson,  154  111.  572; 
Coleman  v.  Jaggers,  12  Idaho,  125; 
Lees  V.  Wetmore,  58  la.  170;  Brusie 
V.  Gates,  80  Cal.  462;  Edsell  r. 
Nevins,  80  Mich.  146;  Walet  v. 
Haskins,  68  Tex.  418  (a  case  where 
laches  barred  relief) ;  Sage  v.  Winona 
«fe  St.  Peter  R.  R.  Co.,  19  U.  S.  App. 
1;  Baumgardner  v.  Fowler,  82  Md. 
631  (a  case  of  wild  and  uncultivated 
land).  Where  removal  of  cloud  from 
title  is  merely  incidental  to  the  pri- 


mary relief  sought,  or  the  plaintiff  lias 
no  remedy  at  law,  neither  legal  title 
nor  possession  is  necessary  to  main- 
tain his  suit.  Swick  v.  Rease,  ()2 
W.  Va.  557. 

2  Aiken  v.  Suttle,  4  Lea  (Tenn.), 
103;  Gandy  v.  Fortner,  119  Ala.  303; 
Wiley  V.  Bird,  108  Tenn.  168;  Worth- 
ington  T.  Miller,  134  Ala.  420. 

^  Jones  V.  Nixon,  102  Tenn.  95. 

*  See  Eckman  v.  Eckman,  55  Pa. 
269;  Haines'  Appeal,  73  Id.  169.  See, 
also,  Orton  v.  Smith,  18  How.  263; 
Munson  v.  Munson,  28  Conn.  582; 
Gamble  v.  Loop,  14  Wis.  465;  Moore 
V.  Cord,  Id.  213;  Farnham  r.  Camj)- 
bell,  34  N.  Y.  480;  Wells  v.  Buffalo, 
80  Id.  253;  Lehman  v.  Roberts,  86 
Id.  232;  King  v.  Townshend,  141 
N.  Y.  358;  Browning  v.  Lavender, 
104  N.  C.  69;  Charman  v.  Charman, 
17  Haw.  171.  But  see  Dederer  v. 
Voorhies,  81  N.  Y.  153. 


CIJ.  IX.] 


BIIJ.S    C^IJA    'II.MKT;    IJKCKIVKKS.    KT(\ 


t  /' 


of  Chancery  ussuincs,  and  llial  il  is  analogous  to,  rallicr  than 
identical  with,  the  roliof  which  is  granted  in  bills  which  are 
technically  qido  litiict. 

The  general  suhject  ol"  receivers  is  one  which  has  assumed  n^t 
a  little  importance  during  the  past  few  years;  and  the  necessity 
for  such  a  preventive  remedy  lias  not  onl)^  led  to  the  freciuent 
interposition  of  Coutts  of  Chancery,  but  has  also  induced  legis- 
lation in  very  many  states  of  the  l^nion,  by  which  the  same 
object  is  attained  through  the  medium  of  statutory  forms. 
Even,  however,  in  those  states  where  such  statutes  exist,  the 
principles  of  the  Court  of  Chancery  in  relation  to  receivers  arc 
looked  to  for  guidance;  and,  hence,  it  will  be  proper  to  gi^•e  an 
outline  (which  must  necessarily  be  a  brief  one)  of  these  pi'inciples, 
and  a  few  illustrations  of  the  manner  in  which  they  are  ai)i)rK'd. 

A  receiver  is  an  indifferent  i)ers0n  between  the  parties  ap- 
pointed by  the  court  to  collect  and  receive  the  rents,  issues,  and 
profits  of  land,  or  the  produce  of  personal  estate,  or  other  things 
which  it  does  not  seem  reasonable  to  the  court  that  either  jiarty 
should  do;  or  where  a  party  is  incompetent  to  do  so,  as  in  the 
case  of  an  infant.'  The  remedy  of  the  appointment  of  a  I'cceiNcr 
is  one  of  the  very  oldest  in  the  Court  of  Chancer)^ ;  '  it  has  been 
assumed  for  the  advancement  of  justice;  it  is  eminently  a  'pro- 
tective measure,^  and  is  founded  on  the  inadequacy  of  the  j-emedy 
to  be  obtained  in  the  courts  of  ordinary  jurisdiction."^ 

577.  Appoiiitmeiit  a  matter  of  discretion;  rule  under 
which  the  discretion  is  exercised. 

As  a  general  rule,  the  appointment  of  a  receiver  is  a  matter 
which  rests  in  the  discretion  of  the  court  ;^  but  this  discretion 


1  Dan.  Ch.  Prac.  1552;  Kerr  on 
Receivers,  2  (2d  Am.  ed.).  See,  also, 
Booth  V.  Clark,  17  How.  831;  Lotti- 
mer  v.  Lord,  4  E.  D.  Smith,  18:5; 
Libby  v.  Rosekrans,  55  Barb.  202; 
Baker  v.  Backus,  32  111.  79;  Beverley 
V.  Brooke,  4  Gratt.  208. 

2  Per  Vice-Chancellor  Sir  G.  M. 
Giffard,  in  Hopkins  r.  Canal  Pro- 
prietors, L.  R.  6  Eq.  447.  See,  also, 
1  Spence's  Eq.  673,  note  f ;  and  Id. 
378. 

3  McMahon  v.  North  Kent  Iron- 
works Co.  [1891],  2  Ch.  148,  where 


it  was  held  that  a  mortgagee  ni:iy  !)(> 
entitled  to  a  receiver  in  order  to  pre- 
serve the  property,  although  there 
has  been  no  default  either  in  [)rinei- 
pal  or  interest  in  payment  of  his 
debts. 

*  Kerr  on  Receivers,  1. 

5  Owen  V.  Homan,  4  H.  L.  Cas. 
1032;  Kerr  on  Receivers,  3  (2(1  Am. 
ed.),  and  notes.  The  court  may  ap- 
point a  receiver  of  its  own  motion. 
Elk  Fork  Oil  &  Gas  Co.  v.  Foster,  39 
C.  C.  A.  618. 


•so 


I'.l 


<^l 


riMi 


i;h;('i:i\i;i;s,   iotc 


[I'AIiT   HI. 


is  sonieiiiucs  tlie  subject  of  error;  '  and  Ls  always  exercised  under 
certain  well-established  rules.  These  rules  were  stated  in  Blond- 
heim  /'.  Moore  (;i  leading  authority  in  this  country)  to  be  (1)  that 
the  power  of  appointment  is  a  d(  licate  one,  and  is  to  be  exercised 
with  great  circumspection;  (2)  that  it  must  appear  that  the 
claimant  has  a  title  to  the  ])roperty,  and  the  court  must  be  satis- 
lied  by  affidavit  that  a  receiver  is  neces#;ary  to  preserve  the 
pro])erty;  (3)  that  the  court  never  appoints  a  receiver  merely 
because  the  measure  can  do  no  harm;  (4)  that  fraud  or  innninent 
danger,  if  the  intermediate  |.)ossession  should  not  be  taken  by  the 
court,  must  be  clearly  proved;  and  (5)  that  unless  the  necessit}' 
be  of  the  most  stringent  character,  the  court  will  not  appoiid  a 
receiver  until  the  defendant  is  first  hc^ard  in  i-esponse  to  tiie  ap- 
plication.- 

The  conduct  of  the  party  who  applies  for  a  receiver  is  also 
the  subject  of  scrutiny,  and  unless  that  conduct  is  free  from 
blame  a  receiver  will  be  refused.^  Moreover,  parties  \\ho  have 
acquiesced  in  property  being  enjoyed  against  their  own  alleged 
rights  cannot  come  into  the  court  for  a  roceiver.^ 


578.  Cases  in  whicli  a  receiver  will  be  appointed. 

The  cases  in  which  a  receiver  may  be  appointed  are.  numerous. 
Thus,  the  appointment  may  be  made  either  because  of  tiie  in- 
capacity of  the  holder  of  the  legal  title ;  or  because  of  the  untrust- 
worthiness  of  such  holder;  or  because  of  disputes  between  legal 
owners;  or  because  e([uita[)le  rights  might  be  endangered  l)y 
leaving  the  proj)erty  in  the  hands  of  the  holder  of  the  legal  title; 
or  because  the  rights  of  remaindermen  or  reversioners  might  be 
endangered . 

Of  the  first  head  the  case  of  infants  is  an  example.    The  court 


1  See  Milwaukee  Railroad  Co.  v. 
Soulier,  2  Wall.  .')21,  where  an  order 
of  the  Circuit  Court  refusing  to  dis- 
charge a  receiver  was,  under  the  cir- 
cumstances, held  to  be  error,  and 
was  reversed  in  the  Supreme  Court. 

2  Blondheim  v.  Moore,  11  Md.  364. 
See,  also,  Voshell  r.  Hynson,  26  Id. 
83;  Tomlinson  v.  Ward,  2  Conn.  391; 
Orphan  Asylum  v.  McCartee,  Hop- 
kins, 429;  Mays  v.  Rose,  1  Freem. 
Ch.  703;  Ladd  v.  Harvey,  1  Foster, 
514;  Maynard  v.  Railey,  2  Nev.  313; 


Crawford  v.  Ross,  39  Ga.  44;  Whit- 
worth  r.  Whyddon,  2  Mac.  &  G.  "jo; 
Evans  v.  Coventry,  5  De.  G.,  M.  &  G. 
917;  Cupit  V.  Jackson,  13  Price,  734; 
Kerr  on  Receivers,  10  (2d  Am.  ed.). 
In  Tuttle  r.  Blow,  176  Mo.  15S,  a  re- 
ceiver was  appointed  without  notice 
— the  emergency  being  such  as  to 
justify  the  action. 

3  See  Baxter  v.  West,  28  L.  J.  Ch. 
169. 

4  See  Tibbals  v.  Sargent,  14  N.  J. 
Eq.  449. 


H.  IX.j 


B1LL8    (ll\.\     ll.Mi;)  ,    KECEIVERS,    ETC. 


781 


will  interfere  for  the  protection  of  infants;  and  will  protect  their 
estate  even  as  against  the  legal  guardian.' 

Of  the  second  head,  illustrations  will  be  found  in  those  cases 
in  which  property  is  taken  out  of  the  hands  of  executors  or 
trustees,  and  olaced  in  the  custody  of  receivers.  In  such  cases 
the  court  will  not  act  ui)on  slight  grounds,  l)ut  upon  a  proper 
case  being  made  out,  as  where  misconduct,  waste,  or  improper 
disposition  of  trust  assets  can  be  shown,  there  is  a  case  for  a 
receiver.' 

Again;  receivers  may  be  appointed  because  of  disputes  be- 
tw^een  holders  of  legal  titles,  whether  the  dispute  is  as  to  who 
is  really  the  holder  of  the  legal  title,  or  as  to  which  of  two  legal 
holders  shall  be  entitled  to  the  custody  of  the  property.  Thus, 
where  there  is  a  dispute  as  to  the  right  of  probate  or  of  admin- 
istration, a  receiver  will,  in  a  proper  case,  be  appointed.^  It 
must,  however,  be  remembered  that  such  appointments  are 
only  made  in  obedience  to  the  general  rules  already  stated ;  and 
that  the  court  will  not  interfere  unless  there  is  proof  that  the 
legal  title  is  in  danger  of  being  abused.'* 

An  illustration  of  the  necessity  for  the  appointment  of  a  re- 
ceiver, as  between  two  holders  of  the  legal  title,  occurs  in  the 
case  of  partners.  Where  there  is  a  violation  of  partnership  rights, 
by  which  an  improper  or  fraudulent  disposition  of  partnership 
l^roperty  may  be  effected,  a  receiver  will  be  appointed;  but  the 
jurisdiction  in  such  cases  is  an  extremely  delicate  one,  and 
should  not  be  exercised  except  in  such  cases  of  misconduct  as 
would  justif}^  a  decree  for  a  dissolution;  antl  even  where  a  dis- 
solution is  contemplated  by  the  decree  and  there  is  a  (Hsagi-ee- 


'  Butler  r.  Freeman,  Amb.  3();>; 
Duke  of  Beaufort  r.  Berty,  1  P. 
Wms.  704;  Rice  r.  Tonnele,  4  Sandf. 
Ch.  568;  Kerr  on  Receivers,  16  (2d 
Am.  ed.). 

-  Beverley  r.  Brooke,  4  Gratt.  208; 
Litldell's  Ex'rs  v.  Starr,  1!)  N.  J.  Va\. 
16o;  .Vnon.,  12  Ves.  4;  Evans  v.  Cov- 
entry, 5  De  G.,  M.  &  G.  918;  Kerr  on 
Receivers,  18  et  seq.  (2d  Am.  ed.). 

3  King  r.  King,  6  Ves.  172;  Devey 
r.  Thornton.  <»  Hare,  229;  Ilitelien  r. 
Birks,  L,  l!.  10  E(|.  471;  HutlicHonl 
('.  Douglass,  1  Sni.  &  Stu.  Ill,  n.; 
Ball  V.  Oliver,  2  \'.  &  B.  96;  Rachel 


Colvin's  Case,  5  Md.  Ch.  Dec.  279. 
See,  also,  Jasper  Land  Co.  c.  Wallis 
ct  al.,  123  Ala.  652,  a  conflict  between 
rival  corporation  hoards. 

The  fact  that  the  directors  of  a 
corporation  in  office  are  holding 
(iver  after  the  year  for  whicli  I  hey 
were  elected,  in  default  of  an  election 
of  their  successors,  constitutes  no 
ground  for  the  appointment  of  a  re- 
ceiver of  said  corporation.  .Vlabama 
Coal  Co.  r.  Shackelfonl,  i:;7  Ala,  224. 

■"  Devey  i\  Thornton,  9  Hare,  229; 
llitchen  r.  Birks,  L.  R.  10  Eq.  471; 
Schlecht's  Appeal,  60  Pa.  172. 


782 


BILLS  QUIA  'riMi.i  ;  i;i;(  i:iVKRS,  etc.         [i'akt  hi. 


nient  among  (he  ])ai1nor.s,  it  is  not  in  all  cases  proper  to  appoint 
a  receiver'. 

I^eceivers  will  be  appointed  when  e([uitable  rights  are  in  danger 
of  being  injured  ])y  a  holder  of  the  legal  title.  Thus  a  receiver 
may  be  appointed  on  the  application  of  an  equitable  mortgagee, 
in  a  foreclosure  suit  or  other  suit  for  enforcing  his  security  against 
the  mortgagor  in  possession  having  the  legal  estate.^  And  so, 
also,  in  carrying  out  equitable  remedies,  it  is  sometimes  necessary 
to  appoint  a  receiver;  as  (for  example)  in  the  case  of  creditors' 
])ills,  or  other  means  by  which  the  rights  of  judgment  creditors, 
against  property  which  cannot  be  reached  at  law,  are  sought  to 
be  enforced.^ 

The  holder  of  an  estate  in  remainder  may  also  apply  for  a 
receiver  in  conseciuence  of  the  misconduct  of  the  holder  of  the 
particular  estate  ."* 

Other  cases  in  which  receivers  are  appointed  and  which  fall 
within  the  general  principles  already  stated,  are  those  between 
debtor  and  creditor,^  between  mortgagor  and  mortgagee,*^  in 
the  case  of  corporations;^  between  vendor  and  purchaser;*  be- 
tween covenantor  and  covenantee ;  ^  in  cases  of  bankruptcy ;  ^" 
in  cases  of  lunacy;  "  of  tenants  in  common;  ^^  and  in  the  case  of 
parties  in  possession  of  real  estate  under  a  legal  title. ^^ 

Of  the  above  cases,  by  far  the  most  important  class  is  that  of 
corporations.     The  extent  to  which  Courts  of  Chancery,  by 


1  Slcmmcr's  .\ppcal,  58  Pa.  108. 
See,  upon  the  subject  of  the  appoint- 
ment of  receivers  in  partnership  cases, 
r.owan  V.  .Jeffries,  2  .\shin.  304;  Hol- 
(len  V.  McMakin,  1  Pars.  Eq.  Cas. 
270;  Williamson  r.  Wilson,  1  Bland, 
.18;  Randall  v.  Morrell,  17  N.  J.  Eq. 
:]4G;  Sloan  v.  Moore,  37  Pa.  217; 
Morey  v.  Grant,  48  Mich.  326;  Barnes 
7'.  Jones,  91  Ind.  Kil;  Kerr  on  Re- 
ceivers, 90  (2d  .\m.  ed.);  Jones  /'. 
Weir,  217  Pa.  321. 

2Reid  ?'.  Middleton,  T.  &  R.  22."); 
Kerr  on  Receivers,  53  (2d  Am.  ed.). 
See,  also,  iM(  ad  r.  Burk,  156  Ind.  577. 

•iSee  Oshoni  r.  ll(>y(>r,  2  Paige  Ch. 
342;  Freeman  r.  Stewart,  119  Ala. 
158;  Barber  r.  The  International  Vo. 
of  Mexico,  73  Conn.  .587;  Kerr  on 
Receivers,  55-65  (2d  Am.  ed.). 


4  Kerr  on  Receivers,  89  (2d  Am.  ed.) . 

5  Id. 55-65. 

fi  Kountze  v.  Hotel  Co.,  107  U.  S. 
378;  .\m.  Nat.  Bank  v.  Northwestern 
Life  Ins.  Co.,  .32  C.  C.  A.  277. 

'  Kerr  on  Receivers,  66-80.  It 
was  said  in  a  California  cas(>  (Muri'ay 
i\  Superior  t;ourt,  129  Cal.  628)  that 
a  court  of  equity  has  no  inherent 
power  to  appoint  a  receiver  of  an 
insolvent  corporation  merely  i)ecause 
of  its  insolvency  or  to  wind  up  its 
affairs  in  the  absence  of  a  statutory 
jM-ovision,  sed  quwre. 

8  Id.  81-87. 

»  Id.  87-89. 

10  1,1.  110,  113. 

11  Id.  113. 

12  Id.  114,  120. 

13  Id.  120-127. 


CH.  IX.]  BILLS    QUIA    TIMET;    KICCEIVERS,    ETC.  7S3 

virtue  of  their  general  equity  powers,  go  in  appointing  receivers 
of  corporations,  has,  of  hite  years,  very  much  increased,  particu- 
hirly  in  this  country. 

Receivers  are  now  appointed,  not  only  where  the  dissolution 
of  a  company  is  contemplated,  but  also  where  the  object  is  to 
relieve  the  corporation,  temporarily,  from  the  pressure  of  cur- 
rent obligations  in  order  that  its  business  may  be  thereafter 
continued.  Railroad  and  other  corporations  are  now  placed 
under  the  protection  of  a  receivership,  not  only  as  a  means 
whereby  (for  example)  bondholders,  secured  by  a  mortgage, 
may  avail  themselves  of  the  corporate  receipts  in  order  to  meet 
the  interest  on,  or  principal  of,  their  debts,  and  as  a  step  in  a 
foreclosure  l^ill,  but  also,  in  not  a  few  cases,  where  there  has 
been  no  default  upon  the  interest  on  bonded  obligations,  but 
simply  an  inability  to  meet  ordinary  and  unsecured  debts.  This 
is  done  in  times  of  financial  disturbance,  when  collections  an; 
difficult  and  when  money  cannot  readily  be  had;  and  the  as- 
sistance of  a  court  of  equity  is  sought,  not  by  hostile  creditors 
with  the  view  of  winding-up  the  company,  but  by  friendly  cred- 
itors with  the  assent  of  the  corporation  itself,  and  in  order  that 
its  assets  may  not  be  sacrificed  by  executions,  and  so  that  its 
value  as  a  going  concern  may  be  preserved.  The  equity  upon 
which  the  jurisdiction  of  the  court  is  based,  in  such  cases,  is 
plainly  different  from  that  upon  which  it  rests  in  ordinary  cases 
of  receivership  mentioned  above;  and  the  extTcise  of  this  power 
by  Courts  of  Chancery  is  a  striking  illustration  of  the  progress 
wliich  is  being  made  (one  might  almost  say)  day  by  day  in  this 
i)raiich  of  the  law. 

\\hat  limits  are  to  be  placed  upon  this  exercise  of  chancery 
jjowers,  and  whether  and  to  what  extent  the  jurisdiction  in 
([uestion  is  to  be  exercised  in  favor  of  ordinary  partnerships  and 
of  individuals,  as  well  as  on  behalf  of  corix)rations  and  joint- 
stock  associations,  are  (lucstioiis  of  great  importance,  and  which 
have  not  (it  is  bclieNcd)  been  settled  by  courts  of  last  resort. 
The  whole  subjects  of  receiverships,  under  the  modern  practice, 
has  been,  however,  thoroughly  discussed  in  more  than  one  treatise 
of  recent  publication;  and  for  a  detailed  examination  of  such 
((uestions  as  arc  here  suggested  reference  must  be  had  to  those 
woi'ks.^ 

1  High  oil  Roceivers;  Beach  on  ceivers.  See  McMahon  v.  North 
Receivers;    (lluck  A-  Bcclcor  on    \Xv-       l\(iit   Iron   Works  ("o.  [ISOl],   2  ("h. 


7.:5l  BILLS  (>i  lA  -riMLr;  UECKn  i;us,  etc.        [part  lii. 

A  court  of  equity  will  not  appoint  a  receiver  simply  on  the 
ground  of  public  convenience,  or  because  there  happens  to  be 
no  other  means  of  collecting  or  taking  care  of  a  fund.  Thus, 
when  the  proper  officers  of  a  county  have  levied  a  tax,  but  no 
one  will  act  as  collector,  this  gives  the  court  no  jurisdiction  to 
fill  that  office  or  appoint  a  receiver.^ 

679.  Effect  of  appointmeut. 

A  receiver  is  an  officer  of  the  court,  and  his  possession  is  that 
of  the  court."  The  effect  of  his  appointment  is  to  remove  the 
parties  to  the  suit  from  the  possession  of  the  property;  but  at 
the  same  time,  the  right  to  the  property  is  in  no  way  affected  by 
such  appointment,  and  the  receiver  merely  holds  the  property 
as  a  custodian,  and  for  the  benefit  of  him  who  may  be  ultimately 
entitled  to  it.^  The  appointment  works  no  change  in  the  tiile.'^ 
The  i:)ossession  of  the  receiver  will  be  protected  from  interference 
by  third  persons;  and  the  court  will  not  permit  this  possession 
to  be  disturbed  even  by  judicial  process/'^ 

580.  Powers  and  duties  of  a  receiver. 

A  receiver  is,  as  a  general  rule,  a  mere  custodian,  and  has  no 
powers  except  those  expressly  conferred  upon  him  by  the  order 
of  his  appointment,  or  by  special  directions  of  the  court  from 
time  to  time.  If  he  acts  on  a  void  order,  he  is  deemed  to  be 
simply  the  agent  of  the  owner.''  His  general  duty  may  be  said 
to  be  to  take  possession  of  the  estate  in  the  room  and  place  of 
the  owner  thereof;  and,  under  the  supervision  of  the  court,  to 

148,  note  3,  p.  779,  ante,  where  the  Trustees  of  School  District,  102  Ky. 

prcucrvalion  of  the   conipunij's   prop-  556. 

erti/  was  the  ground  for  the  receiver-  -  Hitz  r.  Jenks,  185  U.  S.  166.     A 

ship.      But   there  the   company   was  purchaser  pendente  lite  comes  in  at 

being  wound  up.     It  may  be  noted  his  peril.    Id. 

that  in   Whitney   r.   Bank,   71   Miss.  3  Chicago   Union   Bank  v.   Kansas 

1009,  it  was  held  that  a  bank  can-  City    Bank,     136    U.    S.    223,    236: 

not    have   a    receiver   appointed    on  Quincy,  Missouri  and  Pacific  R.  Co. 

the   application   of   its  own   officers.  v.  Humphreys,   145  Id.  97;  Ciraham 

Reference    may    be    had,     also,    to  v.  Mutual  Aid  Soc,   161  Mass.  357; 

Meyer    r.    Johnston,    53    Ala.    237;  Read  r.  Brayton,  143  N.  Y.  342;  Fel- 

Raiit    V.    Attrill,    106    N.    Y.    423;  ton  v.  Ackerraan,  22  U.  S.  App.  154. 

Farmers'  L.  &  T.  Co.  r.  Crape  Creek  *  Dayton  Hydraulic  Co.  v.  Felsen- 

Coal  Co.,  50  Fed.  Rep.  481;  Fidelity  tliall,  54  C.  C.  A.  .>37. 

Co.  V.  Roanoke  Co.,  68  Id.  623;  Ellis  ■'  Kerr  on  Receivers,  Chap.  VI.  (2d 

V.  Water  Co.,  86  Tex.   109.  Am.  efl.). 

1  Thompson  r.  Allen  Co..  115  U.  S.  «  Tex.  &  I'ac.  R.  R.  Co.  v.  Gay,  86 

550;  Grand  Rapids  Furniture  Co.  v.  Tex.  571. 


CH.  IX,] 


BILLS   QUIA   timet;    RECEIVERS,    ETC. 


785 


manage  the  property  so  as  to  preserve  the  same,  and  (if  pos- 
sible) to  make  it  profitable  for  those  who  may  ultimately  be  de- 
elared  the  owners  thereof.  The  powers  of  a  receiver  are  limited.^ 
All  his  actions  are  under  the  immediate  control  of  the  court; 
and  in  order  to  a  safe  custody  of  the  estate,  he  must  constantly 
apply  to  the  court  for  its  advice  and  sanction.^ 

581.  Writs  of  Ne  Exeat. 

The  writ  of  Ne  Exeat  Regno  is  an  equitable  remedy  in  the 
nature  of  bail  at  common  law.  It  was  at  first  a  high  prerogative 
writ,  and  is  supposed  to  have  been  introduced  originally  some- 
time between  the  reign  of  John  and  that  of  Edward  I.;  and  it 
was  issued  only  when  the  government  deemed  it  expedient,  as  a 
matter  of  state  policy,  to  restrain  some  one  from  departing  from 
the  kingdom.^  As  early  as  the  reign  of  Queen  Elizabeth,  how- 
ever, the  practice  grew  up  of  using  the  writ  as  a  purely  civil 
remedy,  and  for  the  purpose  of  enforcing  equitable  rights.  This 
is  the  only  use  which  is  made  of  it  in  this  countr}',  where  it  is 
treated,  not  as  a  prerogative  writ,  but  as  an  ordinary  process, 
which  issues  as  of  right  in  cases  in  which  it  is  properly  grantaVjle."* 
This  remedy  has  accordingly  been  made  use  of  in  many  states 
from  the  early  colonial  periods  tlown  to  the  present  time;  ■''  and  in 
some  states  the  jurisdiction  to  issue  such  writs  is  expressly  con- 
ferred by  statute.^ 


1  See  Whitley  v.  Challis  [1892],  1 
Ch.  64,  where  the  court  refused  to 
allow  the  powers  of  a  receiver  of 
mortgaged  property  to  be  supple- 
mented by  those  of  a  nianivjer  (as  he 
is  called  under  the  English  practice), 
the  mortgage  not  having  included 
the  business. 

2  Kerr  on  Receivers,  Chap.  MI.  (2d 
Am.  ed.). 

^  The  object  was  to  prevent  a  sub- 
ject from  going  to  the  King's  en- 
emies. Bernal  v.  The  Manjuis  of 
Donegal,  11  Yes.  46.  Sec  further 
as  to  the  origin  of  the  writ,  Beames 
on  Ne  Exeat,  9-11;  1  Hovenden's 
Notes,  457;  note  to  De  Carriere  v. 
De  Calonne,  4  Ves.  577. 

<  Story's  Eq.  Jurisp.  §  1469.  Sec 
Jackson  v.  Petrie,  10  Ves.  164. 

50 


5  See  Rawle's  Essay  on  Equity  in 
Pennsylvania,  40  et  seq.:  and  the 
Registrar's  Book  of  Keith's  Court  of 
Chancery,  in  tlie  Appendix.  See, 
also.  Rice  v.  ilalo,  5  Cush.  242; 
Samuel  v.  Wiley,  .50  N.  H.  :i5:^; 
Porter  v.  Spencer,  2  Johns.  Ch.  169; 
Mattocks  V.  Tremain,  o  Id.  75;  Wood- 
ward i\  Sclialzcll,  Id.  412;  (Jilhert  r. 
Colt,  I  llopk.  479;  Bushnell  r.  Bush- 
nell,  15  Barb.  :}99;  Breck  v.  Smith, 
.54  Id.  212;  Dransfield  r.  Dransfield, 
6  Phila.  143;  Loewenstcin  r.  Biern- 
baum,  8  W.  N.  C.  16o;  iMacDonough 
V.  Gaynor,  IS  N.  J.  Eq.  249;  Dean 
V.  Smith,  2:5  Wis.  483;  Dan.  Ch. 
Prac.  (by  Perkins)  ISOO. 

«  See  ante,  Introduction,  pp.  23,  24 
et  seq. 


786  BILLS    QUL\    TLMirr;    KECEIVERS,    etc  [part  III. 

The  remedy  is  of  a  very  useful  character,  and  sometimes  of 
great  practical  importance.  Thus  (to  take  a  modern  case  by 
way  of  illustration),  in  MacDonough  r.  Gaynor,^  the  complain- 
ants and  defendants  were  engaged  in  partnership  in  New  Jersey, 
in  the  construction  of  a  railroad,  and  a  bill  was  filed  for  an  ac- 
count. The  defendants  resided  in  Pennsylvania;  and  it  was 
shown  by  afhdavit  that  they  were  only  temporarily  in  New 
Jersey,  and  intended  returning  to  the  former  state  in  a  very  short 
time.^  Upon  this  state  of  facts,  the  writ  of  ne  exeat  was  issued, 
the  defendants  to  be  released  upon  giving  bond  to  answer  and 
abide  the  decree  of  the  court. 

From  the  authorities  upon  the  subject  of  writs  of  ne  exeat, 
both  in  England  and  in  this  country,  it  has  been  considered 
that  as  a  general  rule  the  writ  will  be  issued  only  in  the  case  of 
equitable  debts  and  claims,^  but  that  to  this  rule  there  are  two 
exceptions,  viz.,  first,  in  the  case  of  alimony  decreed  to  a  wife, 
which  will  be  enforced  against  her  husband  by  a  writ  of  ne  exeat 
if  he  is  about  to  quit  the  state;  ^  and,  second,  in  certain  cases  of 
account,^  which  are,  however,  after  all,  of  equitable  cognizance, 
and,  therefore,  do  not  properly  constitute  an  exception  to  the 
general  rule.® 

582.  Writs  of  Supplicavit. 

The  writ  of  Supplicavit  was  a  writ  in  the  nature  of  process 
at  common  law  to  find  sureties  of  the  peace.  ''It  was  granted," 
says  Lord  Chief  Baron  Gilbert,  "upon  complaint  and  oath  made 
of  the  party,  where  any  suitor  of  the  court  is  abused  and  stands 

1  18  N.  J.   Eq.   249.     For  a  still  note  to  De  Carriere  v.  De  Calonne,  4 

later  case  see  Griswold  v.  Hazard,  141  Ves.  577. 
U.  S.  260,  stated  ante,  p.  293.  *^  The    application    for    the    writ 

-  It  is  sufficient  if  the  affidavit  al-  must    be    supported     by    affidavit, 

lege    that    the    defendant    is    going  which  must  be  as  positive  as  to  the 

abroad  and  that  the  debt  will  be  in  equitable  debt,  as  an  affidavit  of  a 

danger,    without   averring   that   the  legal  debt  to  hold  to  bail.     Jackson 

purpose  of  going  abroad  is  to  avoid  v.    Petrie,    10    Ves.    164;   Thorne    ik 

the   demand.     Tomlinson    v.   Harri-  Halsey,  7  Johns.  Ch.  189.    An  aver- 

son,  8  Ves.  32.  ment  on   information  and   belief  is 

3  Seymour  v.  Hazard,  1  Johns.  Ch.  insufficient,  except  in  the  single  case 
1;  Smedberg  v.  Mark,  6  Id.  138;  of  matters  of  pure  account, — as  in 
Moore  v.  \'akia,  151  Mass.  363.  the  case  of  partners  and  executors. 

4  Denton  v.  Denton,  1  Johns.  Ch.  Id.;  Rico  v.  Gaultier,  3  Atk.  501. 
364,  441;  Hronk  v.  State,  43  Fla.  The  writ  must  be  asked  for  with  the 
461.  utmost  promptness,  otherwise  it  will 

»  See  1  Hov.  Notes  to  Ves.  Jr.  458;      be  refused.    Jackson  v.  Petrie  {supra). 


CH.  IX.]  BILLS   QUIA   TIMET;    RECEIVERS,    ETC.  787 

in  danger  of  his  life,  or  is  threatened  with  death  by  another 
suitor."  1 

This  writ  has  gone  almost  completely  out  of  use,  as  the  same 
end  is  now  fully  attained  by  proceedings  at  connnon  law,  by 
which  security  for  breach  of  the  peace  is  exacted.  No  case  in 
which  this  writ  has  been  granted  appears  to  exist  in  the  United 
States.  Chancellor  Kent,  in  Codd  v.  Codd,^  refused  the  writ, 
and  doubted  whether  it  ought  now  to  be  granted  in  chancery 
as  the  remedy  in  law  is  complete;  and  although  it  is  said  by  Mr. 
Justice  Story,  in  his  Commentaries  on  Equit}'  Jurisprudence, 
that  "it  is  difficult  upon  the  authorities  to  maintain  the  doubt,"  ^ 
yet  the  opinion  of  Chancellor  Kent  seems  to  have  been  adopted 
in  a  modern  case  by  the  Supreme  Court  of  Massachusetts.  The 
case  referred  to  is  Adams  i'.  Adams,'*  decided  in  1868,  where  a 
married  woman  applied  for  the  writ  of  supplicavit  in  order 
to  obtain  maintenance  from  her  husband,  by  whom  (it  was 
alleged)  she  was  cruelly  treated.  The  application  was  refused, 
partly  on  the  ground  that  a  decree  for  alimony  was  only  inci- 
dental to  the  relief  afforded  by  a  writ  of  supplicavit,  and  could 
not  therefon;  be  made  the  main  object  of  the  writ,  and  partly, 
also,  because  the  complainant  had  a  complete  remedy  at  law.^ 

683.  Progressive  capacity  of  Eijuity  Jurisprudence. 

The  fact  that  the  writ  of  supplicant  has  fallen  itito  disus(>  is 
an  illustration  of  the  truth  of  the  progressive  capacity  of  equity 
jurisprudence.  The  principles  of  equity  had  their  origin,  as  we 
have  seen,  in  the  inability  of  the  common-law  courts  to  afford 
redress  in  all  cases  of  wrong.  In  not  a  few  instances  this  inability 
had  passed  away;  and  while,  in  such  cases,  the  jurisdiction  of 
Courts  of  Chancery  has  sometim(>s  been  maintainetl,  it  has  some- 
times ceased  with  the  occasion  for  its  exercise.  The  dead  limbs 
(so  to  speak)  have  fallen  to  the  ground;  and  the  vitality  of  the 
system  has  been  shown  by  its  ability  to  discard  doctrines  which 

1  (jilljcrt's  Forum  Rom.  202,  2U;J.  plaiuant  luul  conscientious  .scruples 
See  Colman  v.  Sarrel,  1  Vcs.  Jr.  50,  against  instituting  proceedings  in  di- 
f or  an  instance  in  which  the  writ  was  vorce;  but  the  court  said,  with  no 
granted.  little  force,  that  it  could  hardly  be 

2  2  Johns.  Ch.  1  }1.  contended  that  a  bill  in  equity  on  an 
3 Story's  Eq.  Jurisp.  §  1170,  note.  ordinary  tort  (for  example)  could  be 
*  100  Mass.  265.  supported  simjily  because  the  cora- 
5  One  of  the  grounds  of  tli(^  appli-  plaiuant  was  conscientiously  opposed 

cation  in  tliis  case  was  that  the  com-       to  bringing  a  common-law  action. 


788 


BILLS   QUIA   timet;   RECEIVERS,    ETC.  [PART  III. 


have,  ill  the  progress  of  society  or  of  reform  in  the  common  law, 
become  useless.  On  the  other  hand,  growth  in  various  directions 
has  constantly  been,  and  still  is,  taking  place.  In  concluding 
our  examination  of  the  principles  of  equity  it  is  important  to 
bear  this  fact  in  mind.  It  is  important  to  recollect  that  the  crea- 
tive capacity  of  equity  jurisprudence  has  not  only  given  birth, 
in  the  past,  to  the  principles  which  compose  it,  but  that  this 
creative  faculty  still  continues  to  be  energetic  and  productive, 
and  is,  in  modern  times,  constantly  modifying  old  doctrines  and 
inventing  new  ones.^  The  progressive  capacity  of  this  great 
branch  of  the  law-  should  always  be  borne  in  mind  by  every  stu- 
dent and  by  every  practitioner. 


1  The  language  of  a  distinguished 
equity  judge  upon  this  point  may  be 
appropriately  quoted :  "  It  must  not 
be  forgotten,"  said  the  late  Sir 
George  Jessel,  M.  R.,  ''that  the  rules 
of  the  courts  of  equity  are  not,  like 
the  rules  of  common  law,  supposed 
to  have  been  established  from  time 
immemorial.  It  is  perfectly  well 
known  that  they  have  been  estab- 
lished from  time  to  time — altered, 
improved,  and  refined  from  time  to 
time.  In  many  cases,  we  know  the 
names   of   the   chancellors   who   in- 


vented them.  No  doubt  they  were 
invented  for  securing  the  better  ad- 
ministration of  justice,  but  stiU  they 
were  invented.  .  .  .  The  doctrines 
(of  equity)  are  progressive,  refined, 
and  improved;  and  if  we  want  to 
know  what  the  rules  of  equity  are,  we 
must  look,  of  course,  rather  to  the 
more  modern,  than  to  the  more  an- 
cient cases."  In  re  Hallett's  Estate 
(Knatchbull  r.  Hallett),  13  Ch.  D. 
710.  See,  also.  The  State  v.  The  Ohio 
Oil  Co.,  150  Ind.  21. 


INDEX. 


[The  references  are  to  the  sections.] 


ABROAD,  COMMISSIONS  TO  EXAMINE  WITNESSES,  567. 

ACCIDENT,  23,  174-183. 
definition  of,  174. 

limitations  upon  the  relief  afforded  in  equity  in  cases  of,  175. 
when  relief  will  be  afforded  in  cases  of,  176. 
lost  instruments,  177,  4G7. 
penalties,  178. 
liquidated  damages,  179. 
agreements  for  reduction  of  debt,  180. 
Thompson  7;.  Hudson,  ISO 
forfeitures,  181. 

defective  execution  of  powers,  182. 
miscellaneous  cases  of,  183. 

ACCOUNT,  32,  479-486. 

liability  of  trustees  to,  148,  239. 

general  nature  of  the  right  to  an,  479. 

bill  for  an,  480. 

inadequacy  of  common-law  remedies  in  cases  of,  481. 

origin  of  remedy  in  equity  liv  :i  bill  for  an,  482. 

limitations  upon  this  remedy,  483. 

extent  of  this  remedy,  484. 

plea  of  stated  account,  485. 

leave  to  surcharge  and  falsify,  486. 

in  cases  of  dower,  498. 

ACCOUNTS  OF  TRUSTEES,  148. 

ACCUMUL.\TIONS,  133. 

ACQUIESCENCE  IN  FRAUD,  259.    ' 

ACTIONS  AT  LAW.      When   enjoined  in  equity,  407-414.     See  Injunc- 
tions TO  RFSTRAIN  PR0CF:EDINGS  AT  LAW. 

ACTIONS  ON  THE  CASE,  ORIGIN  OF,  7. 

ACTIVE  TRUSTS,  20,  54. 

7,S9 


790  INDEX. 

[The  references  are  to  the  sectious.] 
ACTUAL  FRAUD.     [See  Fr.\ud],  206-217. 
ACTUAL  NOTICE,  268. 

ADEQUATE  REMEDY  AT  LAW.     Equity  will  not  interfere  when  there 
is,  37. 

ADJUSTMENT,   27,   326-3.50.     See   Set-off  ;  Contribution  ;  Exonera- 
tion; SuBUOG.\TIO\-;   M.4RSH.^^LLING. 

AD.MIMSTHATKJN  .SUITS,  33,  528. 
nature  of,  528. 

not  of  ,!;r("a(  impoilaiice  in  this  country,  529. 
gener.nl  course  of  proc-cedinjj;  in,  530. 
doctrine  ol  equitable  assets  in,  531-534. 
of  performance  in,  535-537. 
of  .-atisfar-tion  in,  538-540. 

ADVANCEMENTS,  84 

ordinary  presumption  of  resulting  trust  rel:)utted  by,  84. 

Dyer  v.  Dyer,  84. 

what  will  be  considered,  84. 

ADVANCES,  MORTGAGE  TO  SECURE,  159. 

.EQUITAS,  CAN  BE  DEFINED  ONLY  HISTORICALLY,  1,  note. 

AFTER-ACQUIRED  LANDS,  ELECTION  IN  CASES  OF,  299. 

AGENTS,  BILLS  FOR  ACCOUNT  BY  AND  AGAINST,  484. 
fraudulent  representations  by,  217. 
stand  ill  a  fiduciary  relation  to  their  principals,  237. 
cannot  make  profit  at  expense  of  their  principals,  93. 
notice  to,  is  notice  to  principal,  268. 

ALIENATION  BY  MARRIED  WOMEN,  RESTRAINT  UPON,   104-107. 

ALIENATION  OF  EQUITABLE  ESTATES,  61. 
restraint  upon,  61. 
Nichols  V.  Eaton,  61. 

ALIENATION,  of  expectancies,  future  property,  and  things  not  in  esse  ; 
See  Assignments. 

ALIENATION  OF  NEGOTIABLE   SECURITIES,   INJUNCTIONS   IN 

CASES  OF,  459. 

ALIENATION  PENDING  LITIGATION,  460. 
injunctions  in  cases  of,  460. 

ALIENS,  TRUSTS  FOR  BENEFIT  OF.  60. 

doctrine  of  conversion  applied  for  benefit  of,  314. 


INDKX.  71)] 

[The  refereuces  art'  l<>  the  sections.] 

ALIMONY,  WHEN  DECREED  IN  EQUITY,  W.i. 
Garland  v.  Garland,  113. 

ANCIENT  LIGHTS.     [See  Nuisanck],  440. 

ANNUITIES,  ASSIGNABLE  AT  COMMON  L.\W,  163. 

ANSWER  IN  CHANCERY,  EFFECT  OF,  9. 
admission  of  trust  in,  64. 

ANTICIPATION,  RESTAINTS  ON,  104. 

APPLICATION  OF  PURCH.\SE-MONEY,  277. 
doctrine  abolished  in  Endaud,  27S. 
of  little  importance  in  the  United  States,  279. 

ASSETS,  EQUITABLE.     See  Eqiitabli;  As.^ets. 

ASSIGNEE  OF  CHOSE  IN  .\CTION  TAKES,  SUBJECT  TO  EQUITIES, 
171. 

ASSIGNMENTS,  22,  162-173. 

of  chose  in  action,  common-law  rule  as  to,  162. 
exceptions  to  common-law  rule  as  to,  163. 
allowed  in  equitj',  164. 
of  future  property,  165. 
Holroyd  v.  Marshall,  16.5. 
Tailby  o.  Official  Receiver,  165. 
Ex  par'e  Barber,  165. 
McCaffrey  v.  Woodin,  165. 
exceptions  to  equitable  rule  as  to  166. 
of  part  of  fund,  166. 
MandeviUe  r.  Welch,  166. 
requisites  to,  167. 
what  will  amount  to,  167. 
order  on  a  fuiul,  167. 
promise  to  pay  out  of,  167. 
Bradley's  case,  167. 
Rodick  i'.  Gandell,  167. 
Ex  parte  Tremont  Nail  Company,  167. 
draft  not  an  assianment,  167. 
notice  of,  when  necessary,  168. 
to  whom  given,  168. 

authorities  in  United  States  as  to  notice  of,  conflicting,  169. 
effect  of  equitable,  170. 

subject  to  equities  between  original  parties,  170. 
whether  subject  to  equities  of  third  parties,  171. 
rights  of  action  of  assignee  at  law,  172. 

in  equity,  172, 
of  liabiUty  to  be  sued,  173. 
specific  performance  of.  contract  for,  369,  377. 


792  ixDKX. 

[The  references  are  to  tlie  sectiuus.] 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS,  68. 

ASSURANCE,    SPECIFIC    PERFORMANCE   OF    COVENANTS    FOR 
FT:RTHER,  367. 

ATTORNEY  CANNOT  MAKE  A  PROFIT  AT  EXPENSE  OF  PRINCI- 
PAL, 93. 

ATTORNEY  AND  CLIENT.     See  Soi.kitor  and  Client,  and  Discovehy. 

AUCTION,  PUFFING  AT,  209. 

fraud  on  owner  of  property  sold  at,  210. 

AWARDS,  EQUITY  WILL  CORRECT  MISTAKES  IN,  196. 
equity  will  enforce  specific  performance  of,  370. 

BANKRUPTCY  ACT,  EFFECT  OF,  ON  PARTNERSHIP   AND  SEPA- 
RATE DEBTS,  519. 

BANKRLTPTCY,  MARSHALLING  APPLIED  IN  CASES   OF,  343. 
injunctions  in  aid  of  proceedings  in,  423. 

BILL  IN  EQUITY,  DESCRIPTION  OF,  9. 

BILLS  OF  EXCHANGE,  LIENS  BY,  351. 

BILLS  OF  INTERPLEADER.     [See  Interpleader],  419-422. 

BILLS  OF  LADING,  ASSIGNMENT  BY,  165. 

lilLLS  OF  PEACE,  415-418. 

assei-lion  of  a  common  right,  415,  416,  417. 
vexatious  litigation  of  same  claim,  418. 

BILLS, 

to  estahli.sh  wills,  574. 

to  perpetuate  testimony,  35,  573. 

to  remove  a  cloud  from  title,  575. 

BILLS  QUIA  TIMET.     See  Quia  Timet,  Bills. 

BONA  FIDE  PURCHASER,  25,  171. 
plea  of,  275. 

can  be  used  by  the  holder  of  equitable  title,  264,  276. 
defence  of,  in  cases  of  fraud,  260. 

BOND— 

lost,  177. 
profertof,  177. 

BOUNDARIES,  JURISDICTION  OF  EQUITY  IN  CASES  OF  CONFU- 
SION OF,  32,  503. 

BOYCOTT,  439.     [See  Strikes.] 


i\im:\'.  7i);; 

[The  references  are  to  the  sections.] 

BREACH  OF  TRUST,  REMEDIES  F(JK,  147.     [See  Trustees.) 

BUSINESS— 

injunctions  to  restrain  interference  with,  439. 

CALENDAR,  CHANCERY,  CASES  FROM,  8. 

CANCELLATION,  .31,  47,3,  475. 

as  applied  in  rescission  of  voidable  contracts,  473. 
independent  of  rescission,  474. 

CASE,  ORIGIN  OF  ACTIONS  ON  THE,  7. 

CAUSA  MORTIS— 
gifts,  70. 

CESTUI  QITE  TRUST— 
estate  of,  65. 
transactions  with  trustee,  237. 

CHANCELLOR,  POSITION  OF,  0. 

origin  of  his  extraordinary  jurisdiction,  7. 
reasons  which  contributed  to  its  increase,  7. 

CHANCERY  CALENDAR,  CASES  FROM,  8. 

CHANCERY  HIGH  COURT  OF,  RISE  AND  PROGRESS  OF,  1-12. 

ordinary  juri-sdiction  of,  7. 

courts  of,  abolished  in  some  of  the  states,  14. 

CHARITABLE  USES,  NATURE  OF,  116. 

importance  of,  117. 

origin  of,  IIS. 

Baptist  Church  v.  Hart's  Ex'rs,  118. 

Vidal  V.  Girard's  Ex'rs,  118. 

Mormon  Church  Ca.se,  128. 

statute  of  Elizabeth  as  to,  119. 

characteristics  of,  125. 

CHARITIES,  TRUSTS  FOR,  20,  116-134. 
classification  of,  120. 
for  eleemosynary  purposes,  120. 
for  educational  purposes,  121. 
for  religious  purposes,   122. 
for  public  purposes,  123. 
definition  of,  124. 
Jackson  v.  Phillips,  124. 
Fire  Ins.  Patrol  ?'.  Boyd,  124. 
ry  pr«^.s- doctrine  in,  125,  126. 
Baliol  College  Case  ;  Ironmongers'  Case,  126. 


794  IXDKX. 

[The  references  are  to  the  sections.] 

CHARITIES,  TRUSTS  FOR~icontinued). 
Jackson  v.  Phillips,  126. 
[See  Cy  Pres.] 
uncertainty  of,  131. 

Ellis  V.  Selby,  131. 

Morice  r.  The  Bishop  of  Durham,  131. 

Attorney-General  v.  Soule,  131. 
resulting  trust  in  cases  of,  89,  132. 
Thetford  School  Case.   132. 
not  subject  to  rules  as  to  perpetuities,  133. 

CHATTELS,  SPECIFIC  DELIVERY  OF,  368. 

CHIEF  JUSTICIARY,  5. 

CHOSES  IN  A  CTION,  ASSIGNMENT  OF,  22. 

not  assignable  at  common  law,  162. 

exceptions,  163. 

assignee  of,  takes  .subject  to  equities,  170-171. 

can  be  sued  upon  in  name  of  assignor,  172.     [See  Assignments.] 

CLERGYMEN,  GIFTS  TO  OR  CONTRACTS  WITH  WHEN  VOIDABLE, 
237. 

CLOUD  ON  TITLE,  BILLS  TO  REMOVE,  575. 
COMBINATIONS  IN  RESTRAINT  OF  TRADE,  228. 
COMMISSIONS  TO  EXAMINE  WITNESSES  ABROAD,  35,  567. 

COMMITTEE  OF  LUNATIC,  APPOINTMENT  AND  POWERS  OF,  555. 

COMMON  INJUNCTION,  4U5. 

COMMON  PLE.\S.  4. 

COMPENSATION,  SPECIFIC  PERFORMANCE  WITH,  388-389. 
Sir  Hugh  Cairns's  Act,  395,  477. 

none  in  equity  except  as  incidental  to  other  relief,  476. 
no  uniform  rule  in  the  United  States,  478. 

COMPENSATION  OF  TRUSTEES,  144. 

COMPROMISES  IN  EQUITY,  189. 

CONCURRENT  JURISDICTION  OF  EQUITY  IN  CASES  OF  FRAUD, 
200. 

CONDITIONAL    SALES,     DISTINCTION    BETWEEN,    AND    MORT- 
GAGES, 154. 


ivnKX.  79.J 

[The  references  are  1o  llie  sections.] 

CONFIDENTIAL      COMMUNICATIONS,       DISCLOSURE      OF      RE- 
STRAINED BY  INJUNCTION,  427.  563. 
will  be  protected  thoui^h  no  litigation  is  in  contemplation,  563. 

though  made  lo  unprofessional  advisers  if  \s  itli  reference  to  litiga- 
tion, 5G3. 

CONFIR^L4TION  OF  FRAUDULENT  TRANSACTIONS.  259. 

COXFUSIUX     OF    P.OUNDAHIES,    JURISDICTTOX    OF   EQUITY  IN 
CASES  OF,  32,  .503. 

CONSIDERATlOX,  JXADEQUACV  OF,   219. 

what,  nece.'^sary  in  case  of  .specific  performance,  372-374. 
\aluable,  372. 
meritorious,  373. 

COX  SI  MI  LI   CASU,  WRITS  IN,  7. 

CONSPIRACY,  43<).     [See  Business;  Strikes.] 

CONSTITUTION    OF    THE  IGNITED  STATES,   PROVISIONS   OF,  AS 
TO  EQUITABLE  JURISDICTION.  13. 

CONSTRUCTIVE  FRAUD— MODERN  CRITICISM  UPON  THE  TERM, 
205. 

CONSTRUCTIVE  TRUSTS,  20,91-95. 

tru.stee  cannot  acquire  rights  antagonistic  to  cestui  que  trust,  92. 

extent  of  this  rule,  93. 
trustee  cannot  buy  at  his  own  sale,  94. 
other  constnicti\'c  trusts,  95. 
may  arise  under  contracts,  95. 
do  not  Tail  iiiidcr  the  Statute  of  Frauds,  95,  218. 
trusts  p.r  mahjico  a.  species  of,  9],  210,  218. 

CONTR.\CTS   I'.FTW  i;i:X   HUSBAND  AND  WIFE.  114. 

for  .se))ara1iiiii,   I  15. 

CO.XTRI BUTTON,  27,  328-3.30. 

most  frequent  in  case  of  sureties,  328. 

none  at  law  originally,  329. 

general  rules  as  to,  330. 

between  realty  and  personalty  in  decedents'  estates,  349. 

CONVERSION,  307-321. 

general  nature  and  extent  of  the  doctrine  of,  307. 

example  of;  Fletcher  v.  .\shburner,  .308. 

may  take  place  either  under  a  trust  or  under  a  contract,  309. 

what  language  is  necessary  to  effect  a,  310. 

in  what  ways  a  trust  for.  may  be  imperative,  311. 

question  one  of  intention,  312. 


7!M»  i\i)i;x. 

[Tlie  rfif<'r«'iK'es  are  1o  llic  scctious.] 

CON  VERaiON—icontinurd}. 

contract  to  work  a,  must  be  binding,  313. 

general  results  of,  314. 

qualifications,  314. 

failure  of  purposes  of,  315. 

resulting  trust,  315. 

Ackroyd  v.  Smithson ;  Smith  v.  Claxton,  316. 

'■  out  and  out,"  317. 

doctrine  in  the  United  States  on  this  subject,  318. 

under  instruments  inter  vivos,  319. 

time  from  which  it  takes  place,  320. 

Clarke  r.  Franklin,  320. 

under  optional  contracts,  321. 

CONVERSION  AS  APPLIED  TO  PARTNERSHIP  REAL  ESTATE,  511. 
rule  in  England,  511. 

in  the  United  States,  512. 
quaHfication  of  the  rule  as  to,  513. 

COPYRIGHT,  INJUNCTIONS  IN  CASES  OF,  450-453. 
none  at  common  law  after  publication,  450. 
in  this  country  depends  on  Acts  of  Congress,  451. 
piracy,  452. 
none  in  immoral  publications,  453. 

CORPORATIONS— 

injunctions  to  restrain  destructive  trespass  by,  437. 
nuisance  by,  443. 

jurisdiction  of  equity  over,  by  injunction,  465. 
bills  against  directors  of,  527. 

CORRECTION.     See  Reform.\tion. 

COUNCILS  OF  THE  KING,  3. 

COURT  OF  APPEAL  IX  ENGLAND,  CONSTITUTION  OF,   1 1,  note. 

COURT  OF  CHANCERY,  ORDINARY  JURISDICTION  OF,  7. 
rise  and  progress  of,  1-12. 

COURTS,  MODERN  ENGLISH,  11. 

COVENANTS  FOR   FURTHER  ASSURANCE,  SPECIFIC  PERFORM- 
ANCE OF,  367. 

COVENANTS,   SPECIFIC  PERFORMANCE  OF  NEGATIVE,  398. 

injunctions  in  cases  of  breach  of,  4((] . 
instances  in  which  injunctions  have  been  issued,  463. 
negative  quality  imported  into  affirmative,  464. 
no  interference  quia  timet  in  certain  cases  of,  572. 


ixDEx.  797 

[Tlie  refereiues  are  to  tbe  sections.] 

CREDITORS'  BILLS,  :i:i,  525-.52S. 
are  of  two  classes,  525. 
against  a  debtor  durinii  liletimo,  52G. 
supply  the  deficiencies  in  common-law  executions,  527. 
in  the  nature  of  an  equitable  levy,  527. 
in  cases  of  directors  of  forporations.  527. 
of  the  second  class.     [See  Ap.mixtstr.ktiox  Suits],  528. 

CREDITORS,   FRAUD  OX.     [Son  Fp\ri)].  2!  »-219. 

CRIME,  DISCOVERY  AS  TO,   NOT  COMPELLABLE,  562. 

CRIMLXAL  ACTS    DO  iXOT   STAXDIXG  ALOXE    GIVE    JURISDIC- 
TIOX,  37. 
jurisdiction  of  equity  in  cases  of,  not  necessarily  ousted,  439. 

CROPS,  MORTGAGES  OF  FUTURE.  165  (page  261,  note  2). 

CURIA  REGIS,  4. 
meaning  of,  3. 
application  to,  7. 

CFP/2£:S.  DOCTRINE,  126. 
Jackson  v.  Phillips,  127. 
in  England,  128. 

The  Mayor  of  Lyons  r.  Tlio  Advocate  General  of  Bengal,  128. 
in  LTnited  States,  128,  130. 
Mormon  Church  Case,  128. 
Fontain  v.  Ravenel,  130. 
Loriugs  IK  Marsh,  130. 
Tilden  Will  Case,  131. 

DAMAGES.     See  Compensation;  Liquid.\tkd  D.vmagks. 

DE  BENE  ESSE,  BILLS  TO  TAKE  TESTIMONY,  35,  567. 

DEBTS,  ASSETS  FOR  PAYMENT  OF,  .\T  COMMON  LAW,  532. 
in  equity,  532. 

DECEDENTS'    ESTATES,   APPLICATION    OF    THE   DOCTRINE   OF 
MARSHALLING  TO,  344. 
order  in  which  assets  of,  are  applietl  to  the  payment  of  debts,  346. 
exoneration  of  pensonal  estate,  347,  348,  349. 

DECEIT,  206-214. 

included  in  definition  of  fraud,  206. 

representation  must  be  false,  207. 

in  prospectuses  of  companies,  208. 

by  puffing,  209. 

by  fictitious  bids,  210. 

cannot  be  l)y  representation  of  intention  only,  211. 

nor  as  to  matter  of  law,  212. 


798  IXDEX. 

[The  references  are  to  the  sections.] 

DECEIT— {continued) . 

by  suppressin  vrri,  213. 

kiiowledfie  of  parly  making  representation,  214. 

reasonable  giouuds  lor  belief  not  the  question,  214. 

actual  belief  the  test — Derry  v.  Peek — Bokee  v.  Walker,  214. 

DECLARE  FUTURE  RIGHTS,  BILL  MERELY  TO,  WILL  NOT  LIE, 
571. 

DECREE,  DIFFERENCE  BETWEEN,  AND  JUDGMENT,  7. 

DEEDS,  DEPOSIT  OF,  357. 

DEFINITION  OF  EQUITY,  1. 

DELAY,  39,  203,  259,  260. 

DEPOSIT  OF  TITLE  DEEDS,  MORTGAGE  BY,  357. 

DESTRUCTIVE  TRESPASS,  435-437. 

DILIGENCE  IN  CASES  OF  SPECIFIC  PERFORMANCE,  392. 
in  cases  of  fraud,  2(>3,  259,  260. 

DIRECTORS  OF  COMPANIES,  237,  (page  373,  note  1). 
bills  against,  527. 

DISABILITIES  OF  TRUSTEES,  91,  143. 

DISCOVERY,  35,  556-565. 

defects  in  common  law  as  to,  statutor\'^  changes,  556. 

origin  and  nature  of  bills  of,  557. 

mu.st  be  in  aid  of  legal  proceedings,  559. 

general  rights  of  complainant  in  l)ills  of.  560. 

in  bills  of,  defendant  need  not  answer  as  to  his  own  title,  561. 

or  as  to  evidence  thereof,  .')()1. 
in  l)ills  of,  defendant  need  not  criminale  liimself,  502. 
of  conlideui  i;il  conimuiiic.itions,  c.-mnot  Ix- compelled,  563. 
of  Stat.'  secrets,  cannot  be  conip<lled,  -564. 
whether  in  bills  of,  courts  will  go  on  to  give  relief,  565. 

DISSOI.UTION,  BILLS  FOIJ   P.\RTNERSHIP  ACCOUNT  NEED  NOT 
PR.\V.  .WS. 
of  padnership.  cause,'<  for,  .'iOO. 

DOCUMENTS,  RULES  AS  TO  PRODUCTION  OF,  566. 

DOXATfO  MORTIS  CAUSA,  70. 

DOWER,  32,  494-.502. 

nature  of,  494. 

remedy  Ijy  bill  in  equity  for,  495. 


ixDEX.  799 

[The  references  are  to  the  sections.] 

DOWER— {confinuedj.  .    . 

disadvantage  of  proceediii;:  at,  rommon  law,  496. 
advantages  of  jiroctidure  in  etjuity,  497. 
account  of  mesne  profits,  i'J8. 
multiplicity  of  suits  a\()ide(l,  499. 
out  of  equitable  estates,  500. 
manner  of  assigning,  502. 

DRAFT  NOT  AX  ASSIGXMENT,  167. 
when  it  may  be,  167. 

DRUNKENNESS,  FRAUD  ARISING  FROM,  230. 

DURESS,  FRAUD  ARISING  FROM,  230. 

EDUCATION  OF  INFANTS,  548. 

EDWARD  I.,  ORDINANCE  OF,  AS  TO.  MATTERS  OF  GRACE,  7- 

EJECTMENT  BILLS,  37. 

ELECTION,  25,  295-306. 
definition  of,  295. 
express  and  implied,  296. 

distinction  between  the  two,  and  importance  thereof,  297. 
Sheddon  v.  Goodrich,  297. 

circumstances  under  which  the  doctrine  arises,  298. 
after-acquired  lands,  299. 
powers,  300. 

donor  must  .i^ive  property  of  his  own,  301. 
property  of  the  donee  nnisl  l)e  also  given.  302. 
gifts  nuist  be  t)y  the  same  instrument,  303. 
manner  in  which  it  may  be  made,  304. 
consequence  of,  is  compensation,  not  forfeiture,  305. 
application  of  doctrine  of,  to  cases  of  creditors,  306. 
Kidney  r.  Coussmaker,   306. 
in  ca.ses  of  re-c()nversion,  323. 
between  remedy  at  law  and  bill  in  equity,  363  (page  5-34,  note  3) 

equality  is  equity,  41. 
f:quitable  .\ssets,  .531-53-1. 

doctrine  of,  not  now  important,  531. 
origin  of,  532. 
Silk  V.  Prime,  .533. 
Cook  V.  Gregson,  534. 

EQUITABbE  .\SSIGNMENTS      See  .\ssrovMENTS. 

EQUITAB[>I':  ESTATES,  RULES  AS  TO  DEVOLUTION  OF,  60. 
exceptions,  62. 


800  INDEX. 

[Th«  references  are  to  the  sections.] 

EQUITABLE     ES'i\VTE:<~icontinuaJ.) 
alienation  of,  61. 
liability  of,  for  debts,  61. 
may  sometimes  aiise  out  of  fraud,  19S. 
[See  Trusts.] 

EQUITABLE  ESTOPPEL.     [See  Estoppel],  280-294. 

EQUITABLE  JURISDICTION,  GENERAL  OUTLINE  OF,  16-19. 

EQUITABLE  MORTGAGES,  161. 

EQUITABLE  REMEDIES,  EXAMPLE,  19. 

EQUITABLE  RIGHTS,  EXAMPLE,  18. 

EQUITABLE  TITLES,  EXAMPLE,  17. 
under  trusts,  49. 
under  mortgages,  149. 
under  assignments,  162. 


EQUITABLE  WASTE,  434. 

EQUITY,  DEFINITION  OF,  1. 
meaning  of,  11. 
follows  the  law,  38. 
importance  of  historical  view  of,  2. 
progress!  \"c  capacity  of,  583. 

EQUITY  FOLLOWS  THE  LAW,  38. 

EQUITY  OF  REDEMPTION,  21,  150,  151. 
origin  of,  150. 
nature  of,  151. 

EQl'ITY  TO  A  SETTLEMENT,  100-113. 
Elibank  v.  Montolieu,  110. 
natvue  of,  96,  109. 
how  enforced,  110. 
how  waived,  111. 
to  what  property  it  attaches,  112. 
against  w^hom  and  in  whose  favor,  113. 
maintenance  of  wife,  113. 

ESCHEAT— 

doctrine  of,  as  to  equitable  estates,  60. 

ESTABLISH  WILLS,  BILLS  TO,  574. 

ESTOPPEL,  25,  280-294 
definition  of,  2S0. 


IXDEX.  801 

[The  references  are  (o  the  sections.] 

ES'TOVl'h:L—{conli.nHccl). 
different  kinds  of,  281. 
legal  esLoppels  in  pais,  281. 
by  conduct,  or  equitable  estoppel,  282. 
by  assertion  of  untrutli,  2So. 
Congregation  r.  Williams,  283. 
by  concealment  of  truth,  284. 
Pickard  v.  Sears,  284. 

conduct  which  works  an,  must  be  external  to  the  transaction,  285. 
representations  between  part}-  alleging  estoppel  and  party  estopped,  286. 
and  third  party,  287. 

silence  under  mistake,  288. 

innocent  misrepresentations,  288. 

must  operate  to  deceive  the  party  to  whom  they  are  made,  289. 
mtention  that  conduct  should  be  acted  on  must  e.xist,  290. 
Cornish  v.  Abington;  Manufacturers'  Bank  r.  Hazard,  290. 
must  be  actually  produced  by  the  conduct,  291. 
is  limited  to  representations  made.  292. 
in  cases  of  married  women  and  infants,  293. 
binds  parties  and  privies,  294. 

arises  when   credit    is    induced   to  be    given  by  representation;  In  re 
Agra  and  Masterman's  Bank,  294. 

EVIDENCE  IX  EQUITY,  HOW  TAKEN,  9. 

EVIDENCE,   TO  JUSTIFY   RELIEF   IN   CASES   OF   MISTAKE,    196. 

EVIDENCE,   ADMISSIBILITY   OF   PAROL    IN    CASES   OF   FRAUD, 

258. 
of  reformation,  470. 

^EXAMINATIONS   DE   BENE   ESSE,   3.5,    567. 

EXCHEQITER,  ORIGIN  OF  COURT  OF,  4. 
equitaiole  jurisdiction  of,  5,  note. 

EXCLUSIVE  JURISDICTION   OF  EQUITY  IN  CASES  OF  FRAUD, 
201. 

EXECUTED  TRUSTS,  20,  57. 

EXECITIOX.GI. 

liability  of  equitable  estates  to,  61. 

EXECUnON  OF  TRT'STS  BY  STATUTE,  55. 

in  conuiKJii   l:i\v   in   .some  States,   55. 
Pennsylvania  doctrine,  55. 

EXECUTIONS   AT  COMMON    LAW,   INEFFICIENCY   OF,   526. 
51 


802  INDEX. 

[The  references  arc  to  the  sections.] 

EXECUTORS  CANNOT  MAKE  A  PROFIT  AT  EXPENSE  OF  THE 
ESTATE,  93. 
contracts  with,  when  voidable,  237. 

EXECUTORY  TRUSTS,  20,  57. 

EXONERATION,  27,  331-333. 

not   originally   enforceable   at   law,   331. 
in  estates  of  decedents,  347. 
of  general  personal  estate,  347. 
by  implication,  348. 

EX  MALEFIC  10  TRUSTS,  91,  210,  218. 

EX  PARTE  INJUNCTIONS,  404. 

EXPRESS  TRUSTS,  20,  03,  65. 

EXTRAORDINARY   JURISDICTIONS   OF   CHANCELLOR,    ORIGIN 

OF,  7. 
cases  in   which   it  was  exercised,  8. 
progress   of,    10. 

FAMILY    ARRANGEMENTS   OR   COMPROMISES,    189,    220. 

FATHER    AND    CHILD,    JURISDICTION    OF    EQUITY    IN    CASES 
OF,  546,  547. 
contracts  between,  235. 

FEDERAL  COURTS,   EQUITABLE  JURISDICTION  OF,   13. 

FEMES  COVERT.     See  Married   Women. 

FIDEI  COM  MISS  A,  NATURE  OF,   .50. 

FIDUCIARY    RELATION,    FRAUD    PRESUMED    FROM,    236-239. 

FOLLOWING   TRUST   FUNDS,   86. 

FORECLOSURE,  21,  156. 

FORFEITURES,  181. 

will  not  be  enforced  in  equity,  181. 

Oil  Creek  R.  R.  Co.  v.  Atlantic  and  Great  Western  R.  R.  Co.,  181. 

FRAUD,  24,  197-260. 

Lord  Hardwicke's  division  of,  24. 

importance  of  equitable  jurisdiction  in  cases  of,  197. 
general  nature  of  equitable  jurisdiction  in  cases  of,  197. 
distinctions  between  relief  at  law  and  in  equity,  198. 
sometimes  party  injured  by,  has  an  equitable  estate,  198. 
limitations  upon  equitable  jurisdiction,   199. 


INDEX.  803 

[The  refereuces  are  to  the  sections.] 

FRAUD— (continued). 

in  obtaining  a  will,  199. 

Allen  V.  McPherson,  199. 

Ellis  V.  Davis,  199. 

concurrent   jurisdiction   of  equity  in  cases  of,   200. 

exclusive  jurisdiction   of  equity  in   cases  of,  201. 

transactions  tainted  with,  voidable,  not  void,  202. 

laches,  203,  260. 

transactions  tainted  by,  niu.st  be  adopted  or  set  aside  in  toto,  204. 

general  division  of  the  subject  of,  205. 

modern    doctrine   as   to   constructive,   205. 

Chesterfield  v.  Jan.ssen,  205. 

actual,   general   nature  of,   206. 

matters  of  opinion,  207. 

prospectuses  of  projected  companies,  208. 

puffing,  209. 

on  owner  of  property  sold  at  auction,  •210. 

by  deterring  bidders  by  representations  that  bid  is  made  for  a  party 

beneficially  interested,  210. 
matters  of  intention,  211. 

of  law,  212. 
suppressio  veri,  213. 

knowledge   by   party   making   representations,   214. 
party  has  no  right  to  assert  what  he  does  not  know  to  be  true,  214, 
belief  the  true  test,  214. 
Derrj^  v.  Peek,  214. 
representation  must  be  relied  on,  215. 
material,  216. 

party  must  be  injured  by,  217. 

by  agent,  217. 

trusts  ex  maleficio  arise  from,  218. 
arising  from  intrinsic  nature  of  the  transaction,  219-229. 
inadequacy  of  consideration,  219. 
bargains  by  reversioners  and  expectant  heirs,  220. 
change  of  the  law  in  P^ngland,  221. 
usurious    contracts,    222. 
gambling  contracts,   223. 

subject-matter  of  contracts  when   void,  224. 
gifts  in  restraint  of  marriage,  225. 
condition  in  restraint  of  marriage,  226. 

partial  restraint  of  marriage,  227. 
in  restraint  of  trade-,  228. 
sales  of  public  offices,  229. 
presumed  from  relations  of  parties,  230-239. 
mental  disability,  230. 
drunkenness,  230. 
duress,  230. 

gifts  made  under  undue  influence,  231. 
Huguenin  v.  Baseley,  231. 


804  INDEX. 

[The  references  are  to  the  sections.] 

FRAUD— (continued). 

Allcard  v.  Skinner,  231. 

contracts  made  under  undue  influence,  232. 

parties  between  whom  confidential  relations  exist,  233. 

guardian  and  ward,  234. 

parent  and  child,  235. 

solicitor  and  client,  236. 

trustee  and  cestui  que  trust,  237. 

fiduciary  can  malce  no  profit,  238. 

Tyrrell  v.   Bank  of  London,  238. 

Archer's  Case,  23S. 

promoters  of  companies,  239. 

third  parties  affected  by,  240-257. 

on  creditors,  240. 

Stat,  of  13  Elizabeth,  c.  5,  241. 

jurisdiction  of  equity  in  cases  under  the  statute,  242. 

conveyance  nnist  be  for  a  good  consideration,  243. 

and  bona  fide,  243. 
mom!  obliji.Mtions,  244. 
consideration  of  marriage,  244. 
voluntary  transfers,  245. 
conveyances  by  persons  indebted,  245. 
conveyances  of  pioperty   which   could  not  be  reached  by  execution, 

240. 
gifts  from  husband  to  wife,  247. 

parties  by  whom  fraudulent  conveyances  may  be  avoided,  248. 
secret  agreement  touching  composition  deeds,  249. 
upon  purchasejs,  250. 

stat.  27  Elizabeth,  c.  4,  250. 

difference   between   English   and   American   nile,   251. 

statute  Jiot  applicable  to  personal  propert}',  252. 
on  marital  rights,  253. 

ignorance  of  husband  as  to  existence  of  property  immaterial,  254. 

circumstances  which   constitute  fraud  on   marital  rights,   255. 
on  powers,  256. 

appointment  must  be  made  solely  to  carry  out  the  power,  257. 
admissibility  of  parol  evidence   in   cases  of,  258. 
confirmation   of  fraudulent  transaction,   259. 
relea.se,  259. 
acquiescence,  259. 
laches,  260. 
bona  fide  purchaser,  260. 


FRAUDS,    STATUTE    OF,    EFFECTS    OF,    IN    CASES  OF  REFOR- 
M.\TR)X,  470. 
in  cases  of  trusts,  64. 

in  cases  of  specific  performance,  383-387. 
[See  Statute  uf  I'hauus.] 


TXDEX.  SO.') 

[The  references  are  to  the  sections.] 

FUNDS— 

following  trust,  86. 

FUTURE  ADVANCES,  MORTGAGES  TO  SECURE,   159. 

FUTURE  CROPS,   MORTGAGES  OF,   16.5  (page  261,  note  2). 

FUTURE   PROPERTY,    ASSIGNMENTS   OF,    165. 

GAMBLING  CONTRACTS,  223. 

GENERAL  AVERAGE  334. 

GIFTS, 

mortis  causa,  70. 

from  husband  to  wife,  114. 

as  regards  creditors,  247. 

in  trust,  66. 

between  parties  in  fiduriary  relation,  231. 

GRACE,  JURISDICTION  OF  COUNCIL  IN   MATTERS  OF,  7. 

GUARDIAN   AND  WARD,   TRANSACTIONS   BETWEEN,   234. 

GUARDIANS. 

at  common  law  and  by  statute,  541. 
necessity   for  jurisdiction   of  equity  over,   542. 
appointment   and    removal   of,    546. 

GUARDIANSHIP,    A    FATHER'S    DUTY,    NOT    PRIVILEGE,   547. 

HEIRS,  BARGAINS  BY  EXPECTANT,  220. 

HIGHW.\YMAN  CASE,  42. 

HUSBAND  CANNOT  MAKE  PROFIT  AT  WIFE'S  EXPENSE,  93. 

HUSBAND    AND    WIFE.     See    Married    Women. 
contracts  for  separation  between,  115. 

IDIOTS  AND  LUNATICS,  34,  551-555. 

nature  and  origin  of  equity  jurisdiction  over,  551. 
statute  of  Edward  II.  as  to,  552. 

in  the   United   States,  553. 
method  of  procedure  in  rases  of,  554. 
appointment  and  powers  of  committee,  5.55. 

IGNORANCE  OF  LAW.     See  Mistake;  Fraud. 

IMPLIED  TRUSTS,  20,  78. 

of    two    kinds,    resulting   and    constructive    trusts.     [See    Resulting 
Trusts,  Constructive  Trusts],  78. 


SOfi  INDEX. 

[TIiP  refereiiees  are  to  the  sections.] 
INADEQUACY  OF  CONSIDERATION,   219. 

INFANTS,    JURISDICTION    OF   CHANCERY   OVER,    34,   541-550. 

guardianship  of,  at  common   law,  541. 

necessity  for  jurisdiction  of  chancellor  over,  542. 

made  wards  of  court,  54.3. 

to  be  wards  of  court,  nnist  have  property,  544. 

proceedings  in  case«s  of,  may  be  by  petition,  ,545. 

appointment  and  removal  of  guardians  of,  546. 

custody  of,  546. 

guardianship  of,  a  fatliers  duty,  not  privilege,  547. 

education  of,  .548. 

management  of  estate  of,  549. 

marriage  of,  550. 

wiiea  bound  by  estoppel,  29.3. 

INFRINGEME.XT  OF  COPYRICHT.     See  Copyright. 

of  patent-riglit.     See  Patext-Right. 

INJUNCTIONS,  30,  399-465. 
definition   of,   399. 
mandatory  and  prohibitory,  400. 
mandatory,  400. 
prohibitory,  401 . 

character  of  equitable   remedy  by,   402. 
classification  of,  403. 
interlocutory  and  perpetual,  403. 
ex  parte  or  at  the  hearing,  404. 
common  or  special,  405. 

to  restrain  proceedings  at  law.     [See  Injunction.s  to  Restrain  Pro- 
ceedings AT  Law],  407-414. 
bills  of  peace.     [See  Bills  of  Peace],  415-41S. 
bills  of   interpleader.     [See  Interpleader],  419-422. 
in  aid  of  proceedings  in  bankruptcy,  423. 
in  what  courts  proceedings  will  be  restrained  by,  424. 
in  cases  of  trusts  and  moitgages,  425. 
between  partners,  426. 

to  restrain  disclosure  of  confidential  communications,  427. 
to  protect  legal  rights,  428-465. 
in  cases  of  waste.     [See  Waste],  429-434. 
in  cases  of  destructive  trespass.     [See  Trespa.ss],  435-437. 
in  cases  of  strikes,  439. 

in  cases  of  luii.sance.     [See  Nuisance],  438-442. 
in  cases  of  interference  with  business,  439. 
in  cases  of  patent-right.     [See  Patent-Hight],  444,  448,  449. 
in  cases  of  copyright.     [See  Copyiught],   450,  452. 
in  cases  of  literary   property.     [See   Literary   Property],  454,   455. 
in  cases  of  trade-marks.     [See  Trade-Marks],   456-458 
in  cases  of  alienation  of  negotiable  securities,  459 


TXDEX.  <S07 

[Tho  refereiioos  arc  to  llie  soctions.] 

INJUNCTIONS— (coN//««ft/j. 

in  cases  of  alienation  pending  litifiution,  4  GO. 

in  cases  of  breach  of  negative  covenants.     [.See  Covenants],  461-464. 

in  cases  of  corporations,  46n. 

issue  to  restrain   injui'ies  to  properli/  only,  46.5. 

is.sued  under  common-law  forms  in  some  States,  14. 

INJUNCTIONS   TO    RESTRAIN    PROCEEDINGS   AT   LAW,   407-414. 

not  in  the  nature  of  writs  of  prohibition,  40S. 

general  nature  of  the  jurisdiction,  409. 

equitable  titles  protected  by,  410. 

equitable   rights   protected   by,   411. 

equitable  remedies  assisted  by,  412. 

vexatious   litigation;   election   between   remedies,  413. 

after  court  has  assumed  juri.sdiction  of  cause,  414. 

ill  what  courts  proceedings  may  l)c  i-cstraiiied,  424. 

INTENTION,  MATTERS  OF,  211. 

INTEREST,    WHEN   TRUSTEE  CHARGEABLE  WITH,   142. 

INTERLOCUTORY  INJUNCTIONS,  40.3. 

INTERPLEADER,  419-422. 

bill  of,  mu.st  show  title  in  two  claimants,  420. 
complainant  must  claim  no  interest,  421. 
debt  or  duty  mu.st  be  the  same,  422. 

INVESTMENTS,    BY  TRUSTEES,    140-141. 

ISSUE,  WHEN  TRIED  BY  JURY,  9. 

ITLNERANT  JUSTICES,  .5. 

.IIDGES,  ENGLISH— 

under  Supreme  Court  Judicature  Aft  and  Supplements,  11. 

JUDGMENT,  WHEN  IT  MAY  iJi:  KlOl'T    \I.1\E  AFTER  I'AYMENT, 
.3:}0. 
of  court  of  law,  difference  between  and  decree,  7. 

JURISDICTION  OF  EQUITY,  .37. 

not  ousted  by  assumption  of  jurisdiction   by  courts  of  law  in  similar 

cases,  37. 
exercised   in  personam,  although   property  is  without  the,  47. 

JUSTICIARY— CHIEF,  .5. 

KING,  COULD   BE  ASSIGNEE  OF  CHOSE  /.V  ACTIOS,   163. 

KING'S   BENCH,  COURT  OF,  3,  .5. 

LABOR  AND  SUPPLY  CLAIMS,  WHEN  ENTITLED  TU  PRIORITY 
OVER   MORTGAGES,  .344. 


SOS  INDEX. 

[The  references  are  to  the  sections.] 

LACHES,  39,  203. 

rights  barred  by,  in  case  of  fraud,  260. 
Michoud  V.  Girod;  Gresley  ik  Mousley,  260. 

L.AND— 

specific  performance  of  contracts  as  to,  364. 

LATERAL   SUPPORT  TO  SOIL,   443. 

LA\^',   INJUNCTIONS  TO  RESTRAIN  PROCEEDINGS  AT.     [See  In- 
jux(;tio\'s   to   Restrain   Proceedings  at  Law],   407-414. 
mistakes  of,  186,  187,  188,  189. 

LAWFUL  TRUSTS,  56. 

LEGACIES.     [See  Satisfaction],  538. 

LETTERS— 

enjoinins;  publication  of,  4.55. 

LIABILITY  TO  BE  SUED  CANNOT  BE  TRANSFERRED,  173. 

LIBEL— 

injunction  against  publication,  453. 

LIENS,  28,  351-360. 

distinction  between   those  at  common  law  and  in  equity,  351. 

equitable  liens.  Walker  r.  Brown,  .Wl. 

Frith  V.  Forbes,  351. 

Ex  parte  Waring,  351. 

instances  of  equitable,  352. 

vendor's,  for  purchase-money,  3.53. 

nature  of,  354. 

Mackreth  v.  Symmons,  354. 

Gilman  v.  Brown,  354. 

how  waived,  355. 

for  and  against  whom  it  exists,  356. 
deposit  of  title  deeds,  357. 
Russel  V.  Russel,  357. 
mortgages  of  personalty,  358. 
Holroyd  v.  Marshall,  3.58. 
pledges,  359. 
Jones  V.  Smith,  359. 
in  aid  of  equitable  and  legal  rights,  360. 

Ex  parte  Alston,  360. 

Schotsmans  v.  Lancashire  Railway,  360. 

LIMITATIONS,    APPLICABILITY    OF    STATUTES    OF,    TO    CASES 
OF  FRAUD,  203. 

LIQUIDATED   DAMAGES,    179. 


INDKX.  8()0 

[The  n'fereiiees  are  to  the  sections.] 

LIS  PESDENS,  271. 

Murray  v.  Ballou,  274. 

LITERARY  PROPERTY,  INJUNCTIONS  TO  RESTRAIN  INFRINGE- 
MENT OF,  454,  4.5.5. 
nature  of,  4.54. 
when  lost  by  publication,  4,5.5. 

LITIGATION,    TX.JUNCTIONS    TO    RESTRAIN    VEXATIOUS,   413. 

LOST    IXSTIirMEXTS,    liELIEF   IN   CASES  OF,    177. 

LUNATICS,  NATURE  AND  ORIGIN  OF  JURISDICTION  OF  EQUITY 
OVER,  .34,  .5.51. 
statute  of  Edward  11.  as  to,  ,552. 
jurisdiction  as  to,  in  the  United  States,  5,5,3, 
method  of  procedure  in  cases  of,  554. 
appointment    mid    powers   of   conunittoe   of,    .5.55. 

MAGNA  CHARTA,  PROVISION  AS  TO  COURT  OF  COMMON  PLEAS 
IN,   1. 

forbids  justice  to  be  sold,  (i. 

MANDATORY  INJUNCTIONS,   400. 

MANUFACTORIES.     [See  Nuisance],  439. 

MARITAL   RIGHTS,   FRAUDS  UPON,  25.3-25,5, 

Strathmore  v.  Bowes,  253.  , 

t 

> 
MARRIAGE,   CONTRACTS   IX    RESTRAINT  OF,  224. 

MARRIAGE-BROKERAGE     CONTRACTS     ILLEGAL     AND     VOID, 

22  L 

MARRIAGE,    GIFTS    IN    RESTRAINT   OF,    ("TVIL    LAW    RULE   .\S 
TO,  225. 
origin  of  rule  as  to,  225. 
Staekpole   r.   Beaumont,  22,5. 
gifts  in  entire  restraint  of,  226. 
gifts  in  partial  restraint  of,  227. 

Newton  v.  Marsderi,  227. 
gifts  in  restraint  of  second  marriage  of  man;  Allen  i'.  Jackson,  227. 

MARRIED  WOMEN,  TRUSTS  FOR,  20,  96-115. 

rights  of  husband  at  common   law,  96. 

statute  of  1S82  in  England,  07.  , 

trusts  for  sole  and  separate  use  of,  98. 

trustee  not  necessiirv,  99.  _  . 

no  particul.'ir  woi'ds  necessary,   100. 


810  INDEX. 

[The  references  are  to  the  sectious.] 

MARRIED  WOMEN,  TRUSTS  ¥OR— (continued). 
power  of,  over  separate  estate,  101. 
liability  of  separate  estate,  to  engagements  of,  102. 

rules  in  United  States,  103. 
restraints  on  anticipation  by,  104. 
for  whom  trusts  may  be  created,  105. 
rules  in  the  United  States,  106. 
Lewin's  propositions,  107. 
pin-money  trusts,  108. 
wife's  equity   to  a  settlement,   109. 

how  enforced,  110. 

how  waived,  111. 

to  what  property  it  attaches,  112. 

against  whom,  113. 

in  whose  favor,  113. 
gifts  from  husband  to  wife,   114. 
contracts  for  separation,  11.'). 

MARRIED  WOMEN,  WHEN  ESTOPPED  IN  EQUITY,  293. 

MARSHALLING,  27,  340-350. 

two  methods  of  appl\-ing  the  doctrine,  341. 

application  in  cases  of  bankruptcy,  343. 

Greenwood  v.  Taylor,  343. 

rule  in  Fosdick  v.  Schall,  344. 

as  applied  to  estates  of  decedents,  345. 

will  not  take  place  in  favor  of  a  charity,  350. 

Mogg  r.  Hodges,  350. 

I, 

i- 

:\IAXTMS  IN  EQUITY,  37-48. 

definition  of,  37. 

IK)  riiiht  without  a  remedy,  37. 

no  remedy  in  e(iuitv  when  the  remedy  at  law  is  complete,  37. 

no  remedy  in  equity  nierely  because  legal  remedy  has  failed  in  a  par- 
ticular case,  37. 

no  remedy  in  equity  when  municipal  law  cannot  take  cognizance  of 
the  right,  37. 

no  remedy  in  equity  in  contravention  of  a  positive  rule  of  law,  37. 

no  remedy  in  equity  when  the  amount  involved  is  trivial,  37. 

equity  follows  the  law,  38. 

rigilantibuf!  non  dormientibiift  (pquitaft  suhvenit,  39. 

between  equal  equities  the  law  will  prevail,  40. 

equality  is  equity,  41. 

he  who  comes  into  equity  nnist  do  so  with  clean  hands,  42. 

he  who  seeks  equity   must  do  cciuity,   43. 

equity  looks  upon  that  ;is  done  which  ought  to  be  done,  44 

between  equal  c<|uitios  priority  of  time  will  prevail,  45. 

equity  imputes  an   intention  to  fulfil  an  obligation,  46. 

equity  acts  in  personam,  47. 


IXDEX.  81 1 

[The  references  are  to  the  sections.] 

MAXIMS  IN  EqVlTY--{coNtinucd). 

suits  in  reference  to  property  beyond  the  jurisdirtion,  47. 
equity  nctfi  spet-ificiilly,  48. 

MEDICAL    ADVISERS,    CX)NTHACTS    WITH,    WHEN    VOIDABLE, 

2.37. 

MENTAL    DISABILITY,    FRAUD    ARISING    FRO.M,    230. 

MERGER  OF  MORTGAGES  SOMETIMES  PREVENTED  IN  EQUITY, 
160. 

MESNE  PROFITS,  IN  DOWER,  498. 

MINES,  PARTNERSHIP  IN.  524. 

MINORS  [See  Ixfaxts]. 

MISREPRESENTATION,    IN    CWSES    OF    MISTAKE,    188. 
knowledge  by  party  mailing,  214. 
must  l)e  relied  on,  215. 
must  be  material,  216. 
party  must  be  injured  by,  217. 
by  asreiit,  217. 

MISTAKE,  23,  184-196. 

equitable  remeiiies  in  cases  of,  184. 

definition   of,   1S5. 

two  kinds  of,  of  law  and  of  fact,  186. 

of  Jaw — Hunt  /-.  Rousmanier's  Admrs.,  Griswold  r.  Hazard,  187. 

Rogers   v.    Ingham,    187. 

misrepresentation  and  surprise,  188. 

compromi?;e  of  doubtful  rislits,   189. 

of  fact— different  kinds,   190. 

requisites  to,  191. 
in   execution   of  powers,   192-195. 
miscellaneous  cases,  196. 

[See  R  Kl'OR.MATION — RkSCIS.SION CANCELLATION.] 

MIXING  TRUST  FUNDS,  86. 

MORAL  OBLIGATION— 
not  enforced,  .37. 
when  it  will  support  a  transfer,  244. 

MORTGAGE,    RIGHTS    OF    SITCCESSIVE    PURCHASERS    OF    PAR- 
CELS   OF    LAND    COVERED    BY,    333. 

* 

MORTGAGEE,     RIGHTS    ANT)    DUTIES    BETWEEN    MORTGAGOR 
AND.     l.-)7. 
cannot  make  a  profit  at  expense  of  mortgagor,  93. 
when   postponed  to  labor  and  supply  claimants,  344. 


Sl'J  IXDRX. 

[The  referfiices  are  to  the  sections.] 

MORTGAGES,  21,  149-161. 

law  of,  HO  longer  peculiar  to  equity,  149. 

nature  of,  150. 

equity  of  redemption,   150-152. 

origin  of,  150 

is  an  estate,  151. 

Roscarrick  v.   Barton,  151. 

Casborne  r.   Scarfe,   151. 

Cook  V.  Gregsoii,   152. 
once  a  mortgage  always  a  mortgage,  153. 
distinction  between  and  conditional  sales,  154. 
absolute  deed  may  be  shown  to  be  a  mortgage,  155. 
foreclosure   suits,    156. 
tacking,  158. 
consolidation  of,  158. 
to  secure  future  advances,  159. 
Brace  r.  The  Duchess  of  Marlborough,  159. 
merger  of,   sometimes  prevented   in   equity,   160. 
equitable,  to  be  considered  under  liens,  161. 
of  personalty,  3.5S. 

MORTGAGOR,  NATURE  OF  HIS  TITLE  IN  ENGLAND,  152. 

in   the  United  States,   152. 

rights  and  duties  between  mortgagee  and,  157. 

MORTIS  CAUSA— 
gifts,  70. 

MORTMAIN,  STATUTES  OF,   134. 

MULTIPLICITY   OF  SUITS,   415  «•<  seq. 

NE  EXEAT,  WRIT  OF,  14,  36,  581. 

NEGATIVE    COVENANTS,    SPECIFIC    PERFORMANCE    OF,    398. 
injunctions  in  case  of  breach  of  [See  Covenant],  461-46.3. 

NEGLIGENCE,  WILL  BAR  RELIEF  IN  CASES  OF  MISTAKE,   191. 

NEGOTIABLE  SECURITIES,   INJUNCTION   IN   CASES  OF  ALIEN- 
ATION OF,  459. 

NEW  YORK,  COITRTS  OF  CHANCERY  ABOLISHED  IN,  14. 

NOISE.    [See  Nuisance;  Injunctions],  439. 

« 

NOTICE,  25,  261-273. 

doctrine  of,  not  applicable  to  contests  between  purelj'  legal  titles,  261. 
applicable   to   equitable    titles,    262. 
L«  Neve   v.   Le   Neve,  262. 


IXD"EX.  S13 

[Th#  rpfprences  are  to  thfi  sections.] 

NOTICE— (continued) . 

definition    and    illustration    of,    263. 

who  ma\-  avail  himself  of  want  of,  264. 

Phillips  V.   Phillips,  264. 

Basset  v.  Xosworthy,  264. 

Wallwyn   i'.    Lee,   264. 

Joyce  r.   De  Mole3^n8,  264. 

Williams  v.  Lambe,  264. 

Collins  t'.  Archer,  264. 

Finch  r.  Shaw,  264. 

extent  of  protection  afforded  by  want  of,  265. 

English  rule  as  to  time  of,  266. 

rule  in  the  United  States,  267. 

is  either  actual   or   constructive,   268. 

actual   notice  either  direct  or  implied,  268. 

actual,  268. 

notice  to  agent  is  notice  to  principal,  268. 

but  not  when  agent  is  author  of  the  fraud,  268. 

case  of  Distilled  Spirits,  268. 

possession  is  notice,  268. 

Holmes  v.  Powell,  268. 

Billington  v.  Welch,  268. 

constructive,  269. 

Vice-Chancellor  Wigram's  division,  269. 

Penny  v.  Watts,  269. 

Birch  r.  EUames,  269. 

by  registration,  270. 

what  registration  will  amount  to,  271. 

effect  of  actual  notice  of  unregistered  conveyance,  272. 

constructive  notice  of  same,  273. 
of  equitable   assignments,    168. 

when  necessary,   168. 

to  whom  given,  168. 

authorities  in  United  States  as  to,  conflicting,  169. 

NUISANCE,    INJUNCTIONS    IN    CASES    OF,    438-442. 
remedies  at  common  law  for,  439. 

how  far  title  at  law  must  be  established  in  bills  to  enjoin  a,  440. 
different  kinds  of,  441. 
coming  to  a,  442. 

NUNS,  GIFTS  TO  CONVENT  BY,  231. 

OFFICES,   CONTRACTS   FOR   SALE  OF,   229. 
equity  will  not  try  title  to,  37. 

OPINION,  MATTERS  OF,  IN  RELATION  TO  FRAUD,  207. 

ORDER  ON  A  FUND,  WHEN  AN  ASSIGNMENT,  167. 


Si4  rxDEx. 

[The  references  are  to  the  iectlons.] 
ORDINARY  COUNCIL,  4,  5. 

ORDINARY    JURISDICTION    OF    THE   COURTS    OF   CHANCERY, 
7. 

OWELTY    IN    PARTITION,    IN    EQUITY,    492. 

PARENT     AND     CHILD,     TRANSACTIONS     BETWEEN.     [See     In- 
fant], 235. 

PAROL    EVIDENCE,    ADMISSIBLE    TO    ESTABLISH    RESULTING 
TRUSTS,  S3. 
when  admissible  in  cases  of  reformation  of  written  mstruments,  470. 
admissibility  of,   in  cases  of  fraud,  2.')S. 

PAROL    VARIATIONS   OF   WRITTEN   CONTRACTS,   381. 

PARTITION,  32,  487-493. 

origin  of  chancery  jurisdiction  in  cases  of,  487. 

disadvantages  of  common-law  action  of,  488. 

changes  by  statute  in  the  United  States,  488. 

advantages  of  the  equitable  method,  489. 

mode  of,  in  equity,  490. 

difficulty  of  making,  no  objection  to  decree  for,  49L 

power  to  award  owelty  in  cases  of,  492. 

power  to  order  a  sale  under  statutes,  in  cases  of,  493. 

PARTNER  CANNOT  MAKE    PROFIT  AT  EXPENSE  OF  COPART- 
NER, 93. 

PARTNERS,    INJUNCTIONS    BETWEEN,    426. 

PARTNERSHIP,   33,   .505-524. 

reasons  for  equitable  remed}'  in  cases  of,  505. 
nature  of  contract  of,  50(). 

bills  for  account  iu>ed  not  pray  dissolution  of,  508. 
causes  of  ilissolution  of,  ,509. 
preservation   of  property  of,   510. 

doctrine  of  conversion  as  a})plied  to  real  estate  of,  511. 
rule  in  England,  511. 

in   the  L^nited  States,  512. 

qualilications   of  rule  as   to,   513. 
sale  and  account  in  cases  of,  514. 
winding  up  of,  515. 

separate  assets  applied  to  pajment  of  separate  debts,  516. 
English   rule,   517. 

rule  in  Tucker  r.  Oxley,  518. 
effect  of  bankruptcy  act  of  1S9S,  519. 
joint  and  separate  executions,  522. 

suits  between  different,  having  a  common  member,  523. 
in  case  of  mines,  524. 


I^7D^>x.  815 

[The  references  are  to  the  tectioni.] 
PART   PERFORMANCE,  384-385. 

PASSIVE  TRUSTS,   20,   .54. 

PATENT-RIGHT,  INJUNCTIONS  IN  CASES  OF,  444-449. 

inspection  in  cases  of,  445. 

account  in  cases  of,  447. 

previous  trial  at   law  to  establish,   unnecessary,  449. 

PEACE,   BILLS  OF.     [See   Bills  of  Peace],  415-418. 

PENALTIES,  WHEN  EQUITY  WILL  RELIEVE  AGAINST,  178,  180. 
discovery  which  will  subject  defendant  to,  not  compellable,  562. 

PENNSYLVANIA,  COLONIAL  COURT  OF  CHANCERY  IN,  14,  Jiote. 

PERFORMANCE,    DOCTRINE  OF,   .535-.537. 

covenant   to   settle   and   .subsequent   purchase,    536. 
covenant   to   pay   and   subsequent   intestacy,   537. 

PERPETUAL  INJUNCTIONS,  403. 

PERPETUATE  TESTIMONY',   BILLS  TO,   35,   573. 

PERPETUITIES,  133. 

PERSON— 

firm  not  a,  within  tlie  Statute  of  Uses,  53,  note. 

PERSONS,  RIGHTS  OF— 

not  subject  of  equitable  jurisdiction,  37,  47. 
not  protected  by  injunction,  465. 

PERSONAL  PROPERTY  LIMITED  IN  REMAINDER,  BILLS  QUIA 
TIMET   IN   CASES   OF,   570. 

PHOTOGRAPHS— 

injunctions  in  cases  of,  455. 

PIN-MONEY,    TRUSTS    FOR,    108. 
Howard  v.  Digby,  108. 

PIRACY,   IN   CASES   OF  COPYRIGHT,  452. 

PLEADINGS  IN  EQUITY,  9. 

PLEDGES,  359. 

POLITICAL  RIGHTS— 

not  subject  of  equitable  jurisdiction,  37. 

POSSESSION,  268.  j 

when   notice,   26S. 
when  case  taken  out  of  Statute  of  Frauds  by,  384. 


S16  INDEX. 

[The  references  are  to  the  sections.] 

POWERS,     DEFECTIVE     EXECUTION     (JF,     EQUITY     JURISDIC- 
TION   IN   CASE   OF,    182,    192. 
what   defects   in    execution   of,    remedied,    193. 
for  whose  benefit,  194. 
against   whom,    195. 

POWERS— 

election  in  cases  of.  300. 

fraud  on,  2o6,  257. 

Aleyn  v.  Belchier;  Lane  r.  Page,  256. 

Lee  V.  Fernie;  Topham  r.  The  Duke  of  Portland,  257. 

POWERS   IN   TRUST,    20,    77. 

PRECATORY   WORDS,   CREATION   OF  TRUSTS   BY,  20,  71. 


■> 


doctrine  in  England, 

in   the   United  States  generally,  72. 

in  Pennsj'h'ania  and  Connecticut,  72. 

what  will  create  a  trust,  73. 

may  be  prima  facie  iniperati\e,  74. 

certainty  of  the  object,  75. 

certainty  of  the  subject,   7G. 

PRESUMPTIVE  TRUSTS.     [See  Resulting  Trusts],  79-90. 

PRIVATE  TRUSTS,  20. 

PRIZE  MONEY— 

contracts  for  sale  of,  when  voidable,  221. 

PROCEEDINGS  AT  LAW,  INJUNCTIONS  TO  RESTRAIN,  407-414. 

PROCESS   IN   EQUITY,   9. 

PRODUCTION   OF   DOCUMENTS,   RULES   AS  TO,  566. 

PROFERT,    WHEN    DISPENSED   WITH    IN    EQUITY,    177. 

PROHIBITORY  INJUNCTIONS,  401. 

PROMISE  TO  PAY  OUT  OF  A  FUND  NOT  AN  ASSIGNMENT,  167. 

PROMOTERS  OF  COMPANIES,   238,  239. 
Tyrrell  v.  Bank  of  London,  238. 

PROPERTY— 

equity  concerned  only  with,   37,   465. 

PROSPECTUS,    FRAUD    IN,    208. 

PUBLIC    COMPANIES,    DESTRUCTIVE    TRESPASS    BY.     [And    see 
Corporations;],  137. 


]\ni;N.  817 

[The  references  are  i»  llie  sectious.] 

PUBLIC    OFFICES,    SALES    OF,    229- 
equit)'  will  not  try  title  tc,  37. 

PUBLIC  TRUSTS,  20,  59. 

PUFFING.  209. 

PURCHASE  BY  TRUSTEE— 
with  trust  funds,  86. 
at  his  own  sale,  94. 
at  an  adverse  sale    94. 

PURCHASE-MOiNEY,    DUTY    OF     PURCHASER    TO    SEE   TO   AP- 
PLICATION  OF    277.  278.  279. 

PURCHASER,    WNA    FIDE    25.   171. 
plea,   of,   275. 
holdt  r  (^f  equitable  title  may  make  use  «f  plea  of,  276. 
in  cases  of  fraud,  260. 

PURCHASER,   WHEN    HE   MAY   BE  COMPELLED  TO  TAKE,   389, 
when  he  may  elect  to  take,  390. 

PURCHASERS,  FRAUD  ON,  250,  2.52. 

PURPRESTURES,  443. 

QUIA    TIMET  BILLS,    14,  36,  568-572. 
the  general  nature  of,  568. 
examples   of,   .")(i9. 

personal  property  limited  for  life  witli  remainders  over,  570. 
will  not  be  entertained   .solely   to  declare  rijjhts,   571. 
no  interference  by,  in  certain  cases  of  coNonants,  572. 

RAILROADS,    MORTGAGES    OF    HOLLl.NG    STOCK    OF,    165. 

when   mortgagees  of,   postponed   to   lalior  and   supply  claims,  344. 
rule   in   I^o.sdick    r.   Schall,   344. 

REAL  ESTATE— 

specific  performance  of  contracts  as  to,  364. 

RECEIVERS,  11,  36,  576-.580. 

general  nature  of  tlie  jurisdiction  as  to,  576. 
appointment  of,  a   matter  of  discretion,  577. 

rules  as  to,  577. 
cases    in    whicli    court    ap[)oints.    578. 
in    cases    of    corporations,    578. 
effect   of   appointment    of,    579. 
powers  and  duties  of,  .")S0. 
in   partnership  cases,  510. 
in  creditor "s  bills,  527. 
52 


818  \:<m:x. 

[The  references  are  to  the  sections.] 

RE-CONVERSION,  26,  322-325. 

may  be  bj^  act  of  party  or  by  act  of  law,  322. 
liow  election  may  be  manifested,  323. 
by  whom  election  may  be  made,  324. 
by  operation  of  law,  325. 
Chichester  v.  Bickerstaff,  325. 

RECORD  COMMISSION,   118. 

REDEMPTION,   EQUITY  OF,   21,   150,   151. 

oriti'iii  of,  150. 

nature  of,  151. 

rules    as    to,    151. 

once  a  mortgage  alwaj^s  a  mortgage,  153. 

REDUCTION    OF    DEBT,    AGREExMENT   FOR,    180. 

RE-EXECUTION   OF   LOST  OR  DESTROYED   INSTRUMENTS,  31, 

467. 

REFORMATION,  31,  .58,  468-471. 
iu   cases   of  executor}^   trusts,   58. 
in  cases  of  fraud  and  mistake,  468. 
general  principle  in  cases  of,  469. 
admissibility   of  parol  cA'idence  in   cases  of,  470. 
under    presumption    of    law,    471. 

REGISTRATION,    NOTICE    BY,    270. 
what  will  operate  as  notice,  271. 

effect  of  actual  notice  of  unregistered  ronvej'^ance,  272. 
Le  Neve  v.  Le  Neve,  272. 

RELEASES— 

obfiiined    by   fraud,   230. 

RELEASE  OF  FRAUD,  2.59. 

REMEDY    IN    EQUITY,    WHEN   IT   EXISTS,    37. 

RENEWAL  OF  LEASEHOLDS,  WHEN  RESULTING  TRUSTS  ARISE 
UNDER,  93. 

RENT,  JURISDICTION   OF  EQUITY  IN  CASES  OF,  32,  504. 

REPLICATION,    EFFP:CT    OF,    9. 

REPRESENTATKJNS  IN  CASES  OF  ESTOPPEL.     [See  Fraud],  286- 
292. 

RESCISSION,  31,  239,  472. 


txnr.x-.  SI 'J 

[The  references  are  to  the  sections.] 

RESTRAINT   OF   MARRIAGE,    GIFTS   IN,   225. 
entire,  226. 
partial,   227. 
[See  Marriage,  Gifts  in  Restraint  of]. 

RESTRAINT     OF    TRADE— 
combinations    in,    228. 
contracts   in,   228. 
modern  doctrine  as  to,  228. 
Northern   Securities  Co.  v.  United  States,  228. 
trusts  in,  228. 

RESTRAINT    ON    ALIENATION,    61. 

in  spendtlirift  trusts,  61. 

in   trusts   for   married   women,    104. 

RESULTING  TRUSTS  OF  FOUR  KINDS,  20,  79. 

purchase-money  paid  by  one,  title  taken  in  name  of  another,  80. 

Dyer  n.   Dyer,  80. 

requisites    to  such  a  trust,  81. 

Statute  of  Frauds,  82. 

parol  evidence  admissible,  83. 

advancements,  84. 

trusts  of  this  Ivind  abolished  in  some  states,  85. 

purchases  b}'  trustees  with  trust  funds,  86. 

when  trustees  mix  trust  fvnids  with  their  own,  86. 

may  be  proved  by  ^arol,  86. 

where  trust  is  not  declared  or  fails,  87. 

where  beneficial  interest  is  not  exhausted,  88. 

Barrs  v.  Fewkes,  88. 

exceptions  in  favor  of  charities,  89. 

conveyances    without   consideration,    90. 

in   cases   of   charities,    132. 

from  faihire  of  purposes  of  conversion,  315. 

REVERSIONERS,  BARGAINS  BY,  220. 

REVOCATION,     POWERS    OF,    IN    VOLUNTARY    SETTLEMENTS, 
67. 

ROLLING    STOCK    OF    RAILROADS,    MORTGAGES    OF,    165. 

SAILORS,  WHEN  CONTRACTS  BY,  FOR  SALE  OF  PRIZE  MONEY, 
VOIUABLIO,  221. 

SALE  IN  PARTITION,  493. 

SALES    iiV    FIDUCIARIES,    PARTIES   MAKING  CANNOT  BID  AT 
94,    143,    239. 

SALES    OF    PUBLIC    OFFICES,    229. 


820  IXDFX. 

I  The  references  are  to  tbe  sections*] 

SATISFACTION,  5;iS-540. 
of  debts  by  legacies,  538. 
of  legacies  by  legacies,  539. 
of  legacies  by  portions,  540. 
of  portions   by   legacies,   540. 

SEPARATE    DEBTS,    APPLICATION    OF    SEPARATE    ASSETS    OF 
PARTNER  TO  PAYMENT  OF,  516. 

SEPARATE  USE— 
trusts  for,   20,  98. 
trustee    not    necessary,    99. 
no  particular  words  necessary,   100. 
Nix  V.  Bradley,  100. 

power  of  married  women  over  estate  settled  to,  101. 
Taylor  c.   Meads,   101. 
liability  of  estate  to  debts  of  feme,  102. 
Johnson    v.   Gallagher,    102. 
rules  in  the  United  States,  103. 

Ewing  ;;.  Smith;  Lancaster  v.  Dolan;  Haines  v.  Ellis,  103. 
restraints  on  anticipation,   104. 
for  whose  benefit  created.   105. 
Massey  r.  Parker;  Tullett  r.  -\rmstrong,  105. 
rules  in  the  United  States,  106. 
Lewin's  propositions  as  to,   107. 

SEPAR.\TION,    CONTRACTS    FOR,     BETWEEN     HUSBAND    AND 
WIFE,  1 15. 
Wilson  V.  Wilson,  115. 

SET-OFF,  27,  327. 

SETTLEMENT  BY  HUSBAND  ON  WIFE,  MUST  BE  REASONABLE, 

114,   247.     [See   Equity  to  a  Settlement.] 

SETTLEMENT,  VOLUNTARY,   ()7. 
SHERIFFS   HELD  COUNTY  COURTS,  4. 

SOIL,    LATERAL    SUPPORT    TO,    443. 

SOLE    AND    SEPARATE    USE.     [See    Separate    Use.] 

SOLICITOR    AM)    CLIENT,    TRANS.\CTIONS    BETWEEN,    236. 

Newman    r.    I'ayne,    236. 
Walmesley   v.    Hooth,    236. 

SPECIAL  INJUNCTION,  405. 

SPECIFIC  PERFORMANCE,  14,  29,  .361-398. 
general  nature  of,  .361. 
of  contracts  for  sale  of  real  estate,  364. 


IXDKX.  821 

[The  references  are  to  the  sections.]  • 

SPECIFIC  PERFURM ANCE— (cou^i/tued) . 

may  be  enforced  between  original  parties  and  those  who  claim  under 

them,  3G5. 
McCreight   v.    Foster,    365. 

of  contracts  as  to  real  estate  outside  the  jurisdiction,  366. 
Penn  i'.  Lord  Baltimore,  306. 
of  covenants  fur  further  assurance,  367. 
of  contracts  as  to  personal  property,  368. 
right  to  compel  delivery  of  certificates  of  stock,  368. 
of  contracts  when  damages  cannot  be  ascertained,  369. 
of   other   contracts,    370. 
rests   in   discretion   of   the   court,   371. 
valuable    consideration    necessary   to,   372. 
meritorious    consideration,    373. 
adequacy  of  consideration,  374. 
performance  in  specie  must  be  necessary,  375. 
must  be  in  accordance  with  general  'equitable  doctrines,  376. 
contract  must  be  mutual,  certain,  and  practicable,  377. 
contracts  to  manage  and  operate  railroads,  377. 
purchaser  not  compellable  to  accept  doubtful  title,  378. 
Pyrke  v.  Waddingham,  379. 
other  rules  as  to  title,  380. 

of  written  contracts  with  parol  variations,  381. 
Townshend  ?'.  Stangroom,  381. 
Gillespie  v.  Moon,  382. 
Statute  of  Frauds,  383. 

exceptions,  383. 
part  performance,  384. 

what   constitutes,   385. 
when  reduction  to  writing  is  prevented  by  fraud,  386. 
when  parol  contract  is  admitted  in  the  answer,  387. 
with  compensation  for  defects,  388. 
when  the  purchaser  may  be  compelled  to  take,  389. 
what  he  may   elect  to  take,   390. 
time  to  make  out  a  title  beyond  the  day,  391. 
due  diligence   required,  392. 
compensation,    Sir    Hugh   Cairns's   Act,    395, 
doctrine  in  the  United  States,  396. 

parties  compelled  to  make  good  their  representations,  397. 
of  negative  covenants,  398. 

SPENDTHRIFT  TRUSTS,  61. 

STATED    ACCOUNT,    PLEA   OF,   485. 

STATE   SECRETS,    DISCLOSURE   OF,   CANNOT   BE  COMPELLED, 
564. 

STATUTE    OF    FRAUDS,    AS   TO   TRUSTS,    64. 

does  not  require  trust  to  be  created  b\'  writing,  64. 


*^22  INDEX. 

[The  references  are  to  the  sections.] 

STATUTE  OF  FRAUDS— {continued).  ( 

personal   chattels   not   within,  64. 
implied    trusts   not   within,    64. 

no  particular  form  of  words  necessary  to  satisfy,  64. 
resulting   trusts,   82. 

in  cases  of  specific  performance.     [See  Part  Performance;  Specific 
Performance],  384,  385. 

STATUTE  OF  LIMITATIONS,  203. 
STATUTE  OF  USES,  10,  53. 

STOCK— 

specific  performance  of  contracts  as  to,  368. 

STRIKES,  439. 

SUBPOENA,  WRIT  OF,  9,  10. 

SUBROGATION,  27,  335-339. 
nature   of   right   of,   335. 
extent  of  doctrine  of,  337. 
volunteer  not  entitled   to,   337. 

SUPPLICAVIT,  WRIT  OF,  36,  582. 

SUPPRESSIO  VERI,  213. 

SUPREME  COURT  JUDICATURE  ACT,  1,  11. 

SURCHARGE   AND    FALSIFY,    IX    CASES   OF   ACCOUNT,   486. 

SURETY  MAY  COMPEL  A  CREDITOR  TO  MAKE  A  PROMPT  USE 
OF   REMEDIES,    339. 

SURETIES,   CONTRIBUTION   BETWEEN,   328. 

TACKING,  158. 

TAX,   INJUNCTION   TO   RESTRAIN   COLLECTION   OF,   424. 

TENANT  FOR   LIFE  CANNOT  MAKE   PROFIT  AT   EXPENSE  OF 
REMAINDER-MAN,  93. 

TENANT    IN    COMMON    CANNOT   MAKE    PROFIT    AT    EXPENSE 
OF  CO-TENANT,  93. 

TESTIMONY  DE  BENE  ESSE,   BILLS  TO  TAKE,  35,  567. 

TESTIMONY    IX    EQUITY,    HOW    TAKEN,    9. 

TIME  TO  MAKE  OUT  TITLE  BEYOND  THE  DAY,  391. 


TXDEX.  823 

[The  references  are  to  the  sections.] 

TITLE,    BILLS  TO   REMOVE  A   CLOUD   FROM,   575. 
defendant  need  not  discover  his  own,  56L 

nor   evidence    thereof,   561. 
purchaser    not    coinpeHable   to   accept   doubtful,    378. 
time  to  make  out,   in   cases  of  specific  performance,  391. 

TRADE,    COMBINATION    L\    RESTRAINT    OF,    228. 
contracts    in    restraint    of,    22S. 
modern   doctrine,   228. 
trusts  in   restraint  of,  228. 
Sugar    Trust    Case,    228. 
Gas    Trust   Case,    228. 
Northern  Securities  Co.  v.  United  States,  228. 

TRADE-MARKS— 

injunctions  in  cases  of,  456-458. 

what  are,  457. 

colorable  imitations  of,   458. 

TRADE  SECRETS— 

injunctions  to  restrain  disclosure  of,  427. 

TRESPASS,    DESTRUCTIVE,    INJUNCTIONS    IN    CASES    OF,    435- 
437. 
in   cases   of   public   companies,   437. 

TRUSTS,  COMMERCIAL,  228.     [See  Trade,  Combination  in  Restrains 

OF.] 

TRUSTS,  DEFINITION  OF,  20,  49. 

early  jurisdiction   of  chancery  as  to,  8. 
are   either   active   or   passive,   20. 

special    or   simple,    20. 
may  be  created  either  by  act  of  party  or  by  act  of  law,  20. 
express  and  implied,  20. 

origin,   history,   and   general   nature   of,   49-t)2. 
distinction   between,  and  fidei  vomrniasa,  50. 
origin   of,   51. 
early  history  of,  51 . 

distinction  between  and  a  technical  use,  52. 
history  of,  before  the  Statute  of  Uses,  52. 

after   the   Statute  of  Uses,  53. 
general    nature    of,    active    and    passive,    54. 
when  executed   by   the  statute,   55. 

by   common  law,   in   some  States,  55. 

aboli.shed    in    some    States,    55. 
lawful    and    unlawfid,    56. 
executed    and   executory,    20,   .57. 

executory,    instruments    creating,    when    reformed,    58. 
pubHc  and  private,  20,  59. 
descent  of,  60. 


8>4  IXDKX. 

[The  references  are  to  tlie  sections.] 

TRVSTS—icovliniad). 

created   by   direct   fiduciary   expressions,   63. 
u\er;ibie   at    common   law,    63. 
as  affected  1)\   tlie  Statute  of  Frauds,  64. 
liy   what   laniiuane    created,   65. 
intention   to  create  nnist   l)e  complete,  65. 
Noiiintarv  disi)0.sitions;  Milroy   p.   Lord;  Kx  parte  Pye,  66. 
Donaldson    /■.    Donaldson;    Kekewick  v.    Maiming,   67. 
when    i'e\ocable,    ()7. 
for  benefit  of  creditors,  6S. 

upon    meritorious   considerations;   Ellis  v.   Nimmo,  69. 
created    b\-    precatory    words,    20,    71. 
doctrine    of    precatory,    applied    cautioush',    72. 
what   are   precatory   words,   73. 
rules  as  to  precatory,  74,  75,  76. 
powers   in    trust,    20,    77. 
implied.     [See   Implied   Trusts],   78. 
resultinji.     [See  Resulting  Trusts],  20,  79-90. 
constructive.     [See   CoNSTRUfTiVE   Trusts],    20,    01-95. 
Ex  malefic io,  91,  210,  218. 

for   married    women.     [See   Married   Women;   Separate   Use;   Pin- 
money;   Equity  to   a   Settlement;   Gifts;   Separation],  96-115. 
for    charities.     [See    Charities],    110-1.34. 
in    restraint  of   trade,    22S. 

TRUSTS  FOR  CHARITABLE  PURPOSES.  [See  Charities],  20,  116- 
134. 

TRUSTS  FOR  MARRIED  WOMEN.  [See  Married  Women;  Sepa- 
R.ATE  Use;  Equity  to  a  Settlement;  Gifts;  Pin-money],  20, 
96-115. 

TRUSTEES,  20,  135-148. 

jurisdiction  of  courts  of  equity  over,  20,  135. 

cannot  use  their  position  to  their  own  advantage,  92. 

i'leech  V.  Sanford   (Rumford  .Alarket  Case),  92. 

cannot  purchase  at  their  own  sale,  94. 

or  at  an  adverse  sale,  94. 

sometimes   allowed    to   bid,   94. 

who  may  be,  130. 

corporations   may   be,   136. 

acceptance   of  trust  by,  137. 

general  duties  of,   1,38. 

conversion    of   securities   by,    139. 

deposits  by,  1.39. 

investments   by,    140. 

English   rule  as  to,   140. 

rule  in   the   United   States  as  to,   141. 
when  chargeable  with  interest,  142. 


IXHFX.  82.") 

[The  references  are  to  the  sectious.] 

TRUSTEES— (con/in//pc/). 
disabilities  of,  143. 
Rumford  Market  Case,  143. 
coinpeii.satioii    of,    144. 
cannot  delegate   their  authority,   145. 
responsibility  of,  for  co-trustees,   146. 
'J'owiiley    r.   Sherbourne,    146. 
Brice  /•.  Stokes,  140. 
rennedies  against,   147. 
accounts  of,   148. 

TRUSTEE  AND  CESTUI  QUE  TRUST,  TRANSACTIONS  BETWEEN, 
237. 

TRUST  FUNDS,  MAY  BE  FOLLOWED,  86. 

UNCERTALNTY    IN    OBJECTS    OF   TRUST— 
a  test  of  charit}-,  116,  131. 
Tilden  Will  Case,  131. 

UNDUE    INFLUENCE,    GIFTS    MADE    UNDER,    231. 
contracts  made  under,  232. 
Huguenin  v.   Baseley,   231. 
Smith  r.  Kay,  232. 
Tate  ?•.  Williamson,  232. 
presumed  from  relation  of  parties,  233. 

guardian  and  ward,  234. 

parent  and  child,  23.'). 

solicitor  and  client,  236. 

trustee  and   cestui  que  trvst,  237. 

executors   and    administrators,    237. 

directors   of   companies,    237. 

agents,  237. 

medical   and    religious   advisers,   237. 

UNITED   STATES,    PRINCIPLES    OF    EQUITY   ADOPTED   IN,    12 

classification   of   the   States   in,   2,    lo. 

UNITED  ST.\TES  COURTS,  EQUITY  .11  KISDICTION  OK,  13. 

UNLAWFUL  TRUSTS,  56. 

USES.     See  Trusts;  Charitable  Uses. 
Statute  of,  10,  .53. 

USURIOUS  CONTRACTS,  221. 

VENDOR'S    LIEN    FOR    PURCH.\SE-MONEY,    353-356. 

nature    of,    3.54. 

how   waived,    355. 

exists  for  and  against  whom,  356. 

distinction   between,  and   vendor's  estate,   364. 


S'2r»  INDEX. 

[The  references  are  to  the  sections.] 
VEXATIOUS    LITIGATION,    INJUNCTIONS    TO    RESTRAIN,    413. 
VIGILANTIBUS  NON  DORMIENTIBUS  MQUITAS  SUBVENIT,  39. 
\()LUNTARY  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS,  68 
VOLUNTARY    DISPOSITIONS    IN    TRUST,    G6,    67. 

VOLUNTARY    TRANSFERS,    AS    AGAINST   CREDITORS,    243,    245, 
247,  248. 

WALTHAM,    JOHN    DE,    ERRONEOUSLY    SUPPOSED    TO    HAVE 
INVENTED   THE   SUBPCENA,   9. 

WARD  OF  COURT. 

when   infant  made  a,   543. 

to  be  a,  infant  must  have  property,  544. 

how    constituted,    545. 

education  of,  548. 

management  of  estate  of,  549. 

marriage  of,  550. 

WASTE,    INJUNCTIONS    TO    RESTRAIN,    429-434. 
common-law   remedies   in   cases  of,   430. 
reasons  for  equitable  remedy  in  cases  of,  43L 
nature  of,  432. 

parties  who  will  be  restrained  from  committing,  433. 
equitable,  434. 

WESTMINSTER    THE   SECOND,    STATUTE   OF,    7. 

WIFE'S   EQUITY  TO  A  SETTLEMENT.     [See  Equity  to  a  Settle- 
ment.] 

WILL— 

fraud  in  obtaining  a,  199. 
trust  created  by,  64. 

WILLS,    BILLS    TO    ESTABLISH,    574. 

jurisdiction  to  correct  mistakes  in,   196. 

WINDING-UP   OF    PARTNERSHIP,    515. 

WITNESSES— 

commissions  to  examine  abroad,  567. 
how  examined   in  equity,  9. 


4 


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